Stephen Wolf

Supreme Court's conservatives deal historic blow to the Voting Rights Act's last remaining pillar

On Thursday, the U.S. Supreme Court's conservatives ruled 6-3 along ideological lines to strike a historic blow against the Voting Rights Act and overturn a 9th Circuit Court of Appeals ruling that had found that two voting laws passed by Arizona Republicans had both the effect and intent of discriminating against Black, Latino, and Native American voters. The ruling reversed the findings of intentional discrimination and will make it much harder to block laws that have a discriminatory effect on voters of color, bringing America one major step closer to reviving the legal regime of Jim Crow.

Consequently, the Supreme Court's ruling significantly increased the level of discriminatory effects that must be demonstrated for a voting law or procedure to violate the Voting Rights Act, opening the floodgates to a new national wave of Republican voter suppression laws that hide their racist intent but have clearly disparate effects based on race.

Last year, the 9th Circuit Court of Appeals blocked both GOP-supported measures: one that bars counting votes cast in the wrong precinct but in the right county, and another that limits who can turn in another person's absentee mail ballot on a voter's behalf.

Arizona had largely transitioned to mail voting even before the pandemic, but the 9th Circuit observed that only 18% of Native American voters receive mail service, and many living on remote reservations lack reliable transportation options. That led some voters to ask others in their community to turn their completed ballots in, which Republicans have sought to deride as "ballot harvesting" in an attempt to delegitimize the practice. The invalidated law had limited who could handle another person's mail ballot to just close relatives, caregivers, or postal service workers.

The 9th Circuit's ruling also invalidated a separate provision prohibiting out-of-precinct voting, in which a voter shows up and casts a ballot at the wrong polling place but in the right county on Election Day. Under the invalidated law, voters in such circumstances could only cast a provisional ballot, which were automatically rejected if it was later confirmed that the voter had indeed showed up at the wrong polling place.

The appellate court decision relied on Section Two of the Voting Rights Act, which prohibits laws that have a discriminatory effect against racial minorities regardless of whether there was an intent to discriminate. The finding of a discriminatory effect is critical because it's often much more difficult if not impossible to prove that lawmakers acted with illicit intent, whereas statistical analysis can more readily prove that a law has a disparate negative impact on protected racial groups.

It's this so-called "effects test" that is the key remaining plank of the Voting Rights Act following the Supreme Court's notorious 2013 decision in Shelby County v. Holder, which invalidated a requirement that many jurisdictions with a history of discriminatory voting laws had to obtain Justice Department approval to make any changes to voting. Some legal observers had warned before this latest decision that even if the effects test weren't formally struck down, the Supreme Court could make it so difficult to comply with the requirements to prove discrimination that the VRA would nevertheless become meaningless.

While the court did not strike down the rest of the foundation Voting Rights Act and deliver the worst-case scenario of ruling Section Two itself unconstitutional, their decision is still devastating to voting rights and could render what's left of the VRA dead in the water.

Between 20 years of frequent Republican minority rule in the presidency, Senate, House, and state legislatures, along with several Supreme Court decisions since 2013 dismantling most of the Voting Rights Act and protecting partisan gerrymandering, the liberal democracy that only came to America in 1965 with the VRA's passage has truly ceased to exist and given way to what experts call "competitive authoritarianism."

Elections still take place with all the trappings of democracy, but they are not truly free and fair. And when the oppressed party is nevertheless able to miraculously win control of the government, they are so overly constrained by unfair institutions such as courts stacked with partisans that they are unable to effectively enact their agenda, much like congressional Democrats are struggling to do right now.

If Democrats are serious about restoring a truly equitable, multi-racial democracy, the ball is entirely in Congress' court. Democrats have what may be their last, best chance before they could lose Congress next year. That entails passing a new Voting Rights Act; the For the People Act with its sweeping expansion of voting protections and ban on congressional gerrymandering; adding new states such as Washington, D.C. to end the disenfranchisement of American citizens and help rebalance the Senate to put an end to two decades of near-constant GOP minority rule; and expanding the Supreme Court itself.

To pass these reforms, Democratic holdouts such as Sens. Joe Manchin and Kyrsten Sinema must first stop clinging to the filibuster and either curtail or eliminate it, but it so far appears doubtful whether they will.

New York Democrats advance bill to ban gerrymandering by county governments — and more from your voting rights roundup


Leading Off

New York: Democratic legislators have passed a bill that would apply nonpartisan redistricting criteria to local governments in 23 counties that have their own county charters, opening up those jurisdictions to lawsuits if they pass maps that don't comply with the legislation. The criteria include requirements that districts be compact and that they "shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties."

If enacted into law, the bill could have an especially large impact on several major suburban counties such as Nassau County on Long Island, where Republican gerrymanders have given the GOP control of the county legislature even though Democrats frequently win the county in statewide or countywide races (Nassau hasn't voted for a Republican for president since 1988). The bill wouldn't apply to the state's 39 non-charter counties, such as the five that make up New York City, because almost all of these jurisdictions already have strict rules governing redistricting.

Redistricting

Illinois: As expected, Republicans have filed a federal lawsuit challenging Illinois Democrats' newly enacted legislative gerrymanders because they were drawn using population estimates instead of data from the decennial census, which won't be released before August. Republicans contend that the estimates are insufficiently accurate and therefore violate the principle of "one person, one vote" established by federal court precedents. Latino voter advocates also filed a separate federal lawsuit making a similar claim.

Democrats passed these maps last month using estimated figures in order to complete legislative redistricting ahead of a state constitutionally mandated June 30 deadline. Had lawmakers failed to enact new districts by then, legislators would have had to cede control over the process to a bipartisan backup commission with a 50-50 chance of having a GOP tiebreaker who would let Republicans pass their own gerrymanders in this blue state.

Redistricting expert Michael McDonald has theorized that Illinois Democrats (and lawmakers from both parties in other states who are also contemplating using population estimates) are doing so with the expectation that even if courts later strike down those maps, legislators will still get the first crack at drawing remedial plans rather than letting a court or a backup commission take over. If so, that could give Illinois Democrats a chance to revise their gerrymanders with official census data later this year.

North Carolina: North Carolina's Republican-controlled state House has unanimously passed a bill that would let officials in dozens of municipalities choose whether to postpone district-based local elections set for this fall and extend the terms of current officeholders in order to give those localities more time to redraw their electoral districts due to delays in receiving census data. The bill would allow them to delay those elections so that they take place alongside the March 2022 state primary, but the change would not apply to future years.

The same House bill would also permanently shift local elections in the capital of Raleigh, which is the state's second-largest city, to take place in November of even-numbered years beginning in 2022 and coinciding with federal elections every two years thereafter at the request of city officials. This change could see turnout increase considerably and make the electorate more demographically representative of the eligible voter pool, and it would also save money on election administration.

The GOP-run state Senate had previously passed a version of the bill with unanimous support several days earlier, but that package didn't include the change in Raleigh. A subsequent vote on the changes made by House lawmakers will therefore be needed in the Senate before the bill can go to Democratic Gov. Roy Cooper.

Voting Access Expansions

Congress: Democratic Sen. Joe Manchin dealt a crippling blow to Democratic efforts to pass federal legislation to protect voting rights and fair elections when he said on Sunday that he will oppose the For the People Act (also known as both H.R. 1 and S. 1), which would ban congressional gerrymandering, enact the most significant voting protections since the 1965 Voting Rights Act, and adopt new campaign finance and ethics regulations. This move comes even though Manchin cosponsored the bill in 2019.

Rather than specify which provisions of the bill he disliked in order to give Democrats a template for a compromise, Manchin said he opposes both making major election changes without bipartisan support and changing the filibuster rule to overcome GOP opposition. Republicans have steadfastly tried to block Democrats from passing any new voting bills, meaning 10 GOP senators were never going to support any Democratic-backed measure to overcome a filibuster.

Manchin's position is completely at odds with political reality, since it effectively hands Republicans a one-way veto over election law changes. Republican state legislators across the country have enacted a wave of new legislation restricting voting access and making it easier for GOP officials to overturn election results on pretextual grounds—without Democratic votes. Manchin is in essence telling those Republicans that there will be no pushback for party-line efforts to undermine voting access and sabotage democracy.

It's unclear now how congressional Democrats will try to proceed. Senate Majority Leader Chuck Schumer has vowed to hold a floor vote on S. 1 this summer, but it would fail to obtain majority support without Manchin, let alone overcome a GOP filibuster. Manchin has repeatedly said Democrats should instead prioritize the John Lewis Voting Rights Advancement Act, which would restore some of the protections of the Voting Rights Act that the Supreme Court's conservative majority gutted in 2013.

However, the John Lewis bill is in no way a substitute for the For the People Act. Among other things, it would do very little to curtail partisan gerrymandering, which is the most consequential plank of H.R.1 And while restoring the VRA could help Democratic presidents block new GOP voting restrictions, it would leave them with little ability to overturn existing restrictions. Furthermore, a future Republican attorney general would undoubtedly show little interest in blocking barriers to voting passed by fellow Republicans.

Congressional redistricting is set to begin in mid-August once the census releases the necessary data, so Democrats have dwindling time left to pass reforms so that they take effect before the 2022 elections. If they fail to pass any meaningful legislation, Republicans are poised to control redistricting in two to three times as many congressional districts as Democrats, and there's a strong risk that GOP gerrymandering could cost Democrats the House in 2022 or 2024. A minority-rule Republican Congress would also create a serious risk that hardliners could try to overturn a Democratic Electoral College victory in 2024, just as a majority of Republicans tried to do after 2020.

Colorado: Democrats have passed a bill in both legislative chambers that aims to reform recall elections and expand voting access, sending it to Democratic Gov. Jared Polis for his expected signature. As we've previously explained, this bill would add new requirements to recall elections with the intention of preventing Republicans from trying to abuse them to win races with low turnout. It would also expand voter registration opportunities through state health agencies and colleges and discourage placing mail ballot drop boxes at law enforcement buildings to avoid intimidating voters.

Connecticut: Connecticut's Democratic-run legislature adjourned on Wednesday without the state House passing a major voting access bill that the Senate had previously adopted. Lawmakers are likely to return for a special session later this year, but there's no guarantee that this legislation will be considered when they do.

The bill in question would have adopted automatic voter registration at multiple state agencies, ended the disenfranchisement of people on parole for felony convictions, allowed online absentee ballot applications, and made absentee ballot drop boxes permanent. State Senate Democrats also failed to pass a House-approved bill that would have eased some statutory restrictions on absentee voting, such as ending a prohibition on people who are caregivers for sick or disabled people to vote absentee.

Maine: Democratic legislators have given preliminary approval largely along party lines to three bills in both chambers that seek to expand voting access. The first bill would see Maine finally adopt online voter registration, which only a handful of states still lack. The second would establish a permanent absentee voter list, letting voters opt into automatically receiving a mail ballot in all future elections. The final measure would allow student IDs to be used for voter registration purposes.

Maryland: Republican Gov. Larry Hogan has let three bills expanding voting access that were passed by Democratic legislators become law without his signature.

One of the new laws will create a semi-permanent absentee voting list whereby voters who opt in will receive a mail ballot in all future elections without having to request one each election. However, unlike other states with similar permanent absentee ballot lists, the Maryland law will remove voters who don't vote in two consecutive election cycles from the list, requiring them to reapply if they want to get back onto the list.

A second new law will strengthen voting access on college campuses, military bases, retirement homes, and other "large residential communities." Sites like these will be able to request an in-person voting location, and colleges will be required to establish voter registration efforts on campus and give students an excused absence to vote if needed. The law will also let military service members register online using their identification smart cards issued by the Defense Department.

Finally, the third law requires absentee drop boxes inside jails and prisons for incarcerated individuals who remain eligible to vote. Additionally, it requires that prisoners be given voter registration forms upon release, since all citizens with felony convictions automatically regain their rights upon release aside from those sentenced for buying or selling votes.

Massachusetts: As part of an amended spending bill, state House Democrats have passed measures to permanently expand early voting and no-excuse mail voting. The new laws would also require the state to send applications for mail ballots to all active registered voters, as it did last year due to the pandemic. Massachusetts has had early voting and no-excuse mail voting for state-level general elections for several years though not for primaries, and mail voting was little-used before the pandemic in 2020. This bill would extend both to all state elections going forward beginning in 2022, including primaries and some local elections.

New York: Democratic legislators have passed a bill that would expand early voting hours and locations during the nine-day early voting period.

The bill sets a formula for counties to determine how many early voting locations they must have. Counties with at least 500,000 registered voters would have to have one early voting location for every 40,000 registered voters, while counties with fewer than 500,000 registered voters must have one for every 30,000 registered voters (with a maximum of 10 sites for smaller counties). Each county regardless of size would also be required to have an early voting location in its largest municipality. It would also expand early voting hours from five to eight on holidays and weekends and allow sites to stay open until 8 PM on weekends (currently they close at 6 o'clock).

In addition, Democrats have passed a bill that would allow voters to track the status of their absentee ballots online, with most Assembly Republicans supporting the bill but most state Senate Republicans opposing it. Democrats also approved a separate bill along party lines that would require election officials to begin processing absentee ballots shortly after they receive them rather than waiting several days after Election Day to begin doing so, as was the case in 2020, which led to delays in determining the winners of several key races.

Vermont: Republican Gov. Phil Scott has signed a bill passed by the Democratic-run legislature with bipartisan support to make Vermont the seventh state to adopt universal mail voting, although the new law only applies to general elections. Officials mailed every active registered voter a ballot last November due to the pandemic, but this new legislation makes that change permanent (in-person voting will remain available). The law also requires that voters be notified and given a chance to fix purported problems with their mail ballots such as a signature supposedly not matching the one on file.

Voter Suppression

Iowa: Republican Gov. Kim Reynolds has signed a bill that places sharp limits on who can turn in another person's absentee ballot on their behalf and restricts the establishment of satellite early voting locations. The law's passage prompted Latino voting advocates to amend their ongoing lawsuit over a separate package of voting restrictions that Republicans enacted earlier this year to now challenge these latest provisions as violations of the state constitution's guarantee of the right to vote.

Louisiana: Democratic Gov. John Bel Edwards has vetoed a bill passed by Republican legislators that would ban private grants to fund election administration after nonprofits donated hundreds of millions around the country in 2020 to address the chronic underfunding of local election administration. Republicans, who hold a two-thirds supermajority in the state Senate and are just shy in the House, may be able to override Edwards' veto because Democratic Rep. Francis Thompson and independent Rep. Roy Daryl Adams both voted for the measure.

Additionally, Republican legislators have passed a bill that would require absentee voters to include their driver's license or state ID card number with their ballot and application, or include part of their Social Security number if they lack a state ID. The bill passed largely along party lines in the state House with a few Democrats voting in favor, but it unanimously passed in the state Senate, meaning Republicans could override a potential veto by Edwards if no votes shift. It's unclear why state Senate Democrats voted for the bill.

New Hampshire: Using their gerrymandered majorities, Republican legislators have passed a bill largely along party lines that includes an amendment that could pave the way for the creation of two separate systems for election administration, one for federal races and one for state and local contests. Republicans are pushing this approach as a way to resist new voting reforms if Democrats in Congress pass H.R. 1, which would enact a sweeping expansion of voting access measures, or any equivalent legislation.

As we have previously explained, Democratic-backed voting reforms rely heavily on Congress' power to regulate federal elections under the Constitution's Elections Clause, but those powers provide a much more limited basis for extending any reforms to the state and local levels. The GOP's plan would not only undermine voting rights but create new administrative problems due to the burdens of potentially maintaining separate systems for two sets of elections, including registration records, ballots, and more, and it could lead to litigation if ultimately adopted.

The bill now goes to Republican Gov. Chris Sununu, who is likely to support the effort but stopped short of promising to sign it.

Texas: Following a firestorm of public backlash over their failed attempt to pass a sweeping voting restriction bill over the Memorial Day weekend, Texas Republicans are now dubiously claiming that they didn't intend to include a provision in the bill that would have made it easier for GOP officials to overturn election results they don't like. A chief proponent of the bill called it "horrendous policy" and said that Republicans don't plan to include that provision when they try to pass the bill again in an upcoming special session of the legislature.

Remarkably, this is now the second time this month that Republicans have tried to insist that measures that would have undermined election integrity and voting access somehow came about by accident. Previously, lawmakers insisted that they'd eliminated early voting on Sunday mornings due to a typo—which would have involved not only changing an "11" to a "1" but also the "AM" in "11 AM" to a "PM" in "1 PM."

Even though Democrats may not be able to block the final bill, the furious public response to the GOP's efforts to undermine democracy—bolstered by an extraordinary walkout of Democratic legislators that temporarily halted the legislation's progress last month—has resulted in the defeat of some of the GOP's most extreme provisions.

Separately, Republican Gov. Greg Abbott has signed a bipartisan bill that will let voters track their absentee ballots online. However, the legislature's adjournment has killed a bipartisan bill that had passed the state House and would have partially reversed the GOP's ban on mobile early voting locations.

Another bill that died was a proposal Republicans had passed in the state Senate (but not the state House) to create a new statewide-elected appellate court in order strip an existing appeals court district of its purview over lawsuits that challenge state laws or are directed at state agencies. Republicans have targeted this court because Democrats had managed to win control of it in the 2018 elections; they'd previously proposed gerrymandering the appellate court districts before trying to simply create a new court.

Electoral System Reform

Colorado: Democratic legislators have given their final approval to a bill that would make it easier for local governments to adopt instant-runoff voting for local elections by providing state support for administering its use. Cities already have the option to use instant-runoff voting, but this bill would remove remaining hurdles to help facilitate the transition. The bill now goes to Democratic Gov. Jared Polis, who is likely to sign it.

Wyoming: On Monday, Wyoming Republicans in a legislative committee voted to consider two bills that would alternately adopt instant-runoff voting or a top-two primary, respectively, in place of the current system of traditional party primaries. Wyoming currently requires only a plurality to win a party's primary.

Hardline Republicans are worried that having too many challengers to Rep. Liz Cheney over her vote to impeach Donald Trump will split the vote and allow her to win renomination next year with a plurality and are trying to change the electoral system. However, even if the GOP ultimately adopts any electoral reforms, it's doubtful whether there would be time to implement the change for this election cycle. (A previous plan to implement runoffs ran aground earlier this year in part for this reason.)

Furthermore, even if Republicans adopt a system like California's top-two primaries, a Cheney defeat is by no means guaranteed, since she could then try to win a general election by joining together moderate Republicans and Democrats if she were to face off against a fellow Republican.

Senate Elections

Nevada: Democratic Gov. Steve Sisolak has signed a bill that will require Nevada governors to fill U.S. Senate vacancies with a replacement appointee who belongs to the same party as the previous senator. However, while most other states that have adopted a similar same-party requirement have structured it so that the governor is limited to picking an appointee from a list submitted by the departing senator's party, this new Nevada law makes no mention of such a list and appears to give the governor wide latitude over selecting an appointee.

How Illinois' Supreme Court elections could lead to a decade of GOP minority rule — unless Democrats act

Five years ago, the Illinois Supreme Court ruled 4-3 along party lines to block a Republican-backed effort to place a redistricting initiative on the ballot that would have, counterintuitively, undermined the cause of fair representation in the Prairie State. But little-noticed elections taking place next year could hand Republicans a majority on the court for the first time in decades that would allow them to greenlight a similar effort. Such a move would open the door to distorted maps under the guise of promoting fairness—and could even allow Republicans to seize control of the legislature despite the state's deep blue lean.

Illinois is one of just a handful of states where Democrats will have full control over the redistricting process following the 2020 census, just as they did a decade earlier. However, thanks in large part to a decades-long history of racist redlining and white flight segregation in Chicago that has left voters of color heavily concentrated in urban areas, Democrats face a "geography penalty" that would leave them at a disadvantage even if the state utilized ostensibly nonpartisan maps.

There's no question that the districts Democrats drew 10 years ago were gerrymandered—lawmakers didn't try to hide their intent. But because of this geography bias, these gerrymanders did not in fact lock in a Democratic advantage in excess of the party's popular support.

One simple way to test this is to compare the political performance of the median district with that of the state as a whole; in Illinois, the median in the state House was three points to the right of the state overall in 2016, while for the Senate it was identical and for Congress, it was just one point to the left. (In neighboring Wisconsin, by contrast, the median districts in GOP-drawn maps were nine to 12 points redder than the state.)

Partisan gerrymandering is by no means the only way to counteract a geography penalty. An independent commission could, in particular, be instructed to consider the fairness of partisan outcomes when drawing new maps. But if Republicans take control of the Illinois Supreme Court, they could let conservative activists deploy a ballot initiative that omits such a requirement and even exacerbates the GOP's geography advantage by prioritizing "compact" districts.

Such an effort could even lock in minority rule in Illinois. Democrats, however, have the opportunity to prevent this scenario by reforming the way state Supreme Court justices are elected, ensuring greater fairness for both the court itself and, by extension, the redistricting process overall.

Illinois is one of just four states, along with Kentucky, Louisiana, and Mississippi, that elects Supreme Court justices by districts rather than statewide. Unlike with legislative districts, however, federal courts do not require judicial districts to have equal population—the thinking being that judges aren't representative officials.

That doesn't mean they're fair, though, particularly since Illinois' districts haven't been redrawn for over half a century. As a result, they've become so badly disproportional that the largest of the single-member districts, the 2nd, is home to more people than the two smallest—the 4th and 5th—combined, as shown in the map below (see here for a larger version). Unsurprisingly, this distortion has benefited more rural areas in the southern part of the state at the expense of voters in the Democratic-leaning Chicago suburbs.

Thanks to this district-level distortion, Republicans could take control of the Supreme Court in next year's elections, even though Illinois is a solidly blue state that voted 57-40 for Joe Biden last year. Four seats on the court are up in 2022, and both the 2nd and 3rd Districts could host competitive elections. (Incumbent justices—one Democrat and one Republican—should be heavily favored in the 1st and 4th Districts, respectively.)

This means that if a recently appointed Republican justice holds his seat in the 2nd, and if the GOP can flip a Democratic open seat in the 3rd, they'll transform the court's current 4-3 Democratic majority into a 4-3 Republican advantage. And that advantage would last for a full decade, because justice serve 10-year terms, and the only other Republican isn't up for reelection until 2030 and holds a solidly red seat anyway.

Normally those elections are what's known as "retention" elections—that is, voters simply say whether they want to keep an incumbent in office, yea or nay. To keep their job, a judge must earn 60% of the vote, though that's always been a foregone conclusion.

That was, until last year, when Democratic Justice Thomas Kilbride in the conservative-leaning (and underpopulated) 3rd District failed to win the supermajority he needed to earn another term. That made Kilbride the first Supreme Court justice since retention elections were adopted in 1964 to lose such an election.

It also set up a traditional partisan election next year in his district, which voted for Donald Trump 51-47. Kilbride's replacement, Democratic Justice Robert Carter, isn't seeking a full term, creating an open seat that Republicans have a strong chance to pick up. Meanwhile, the neighboring 2nd District, which backed Joe Biden by 55-43, will also hold a partisan election because appointed Republican Justice Michael Burke is seeking his first full term. If next year resembles a traditional midterm that disfavors the party in control of the White House, Burke could win despite the district's lean.

Together, these two districts will determine who controls the court, and if Republicans take a majority, they could authorize the very sort of ballot initiative the court rejected in 2016—one that could penalize Democrats and voters of color based solely on where they live, due to a legacy of racism of which they're the victims.

Some top Republicans appear to already be taking notice of how high the stakes are. Politico recently reported that GOP Rep. Darin LaHood could be interested in running for the critical 3rd District next year, which would given his party a much more prominent candidate than judicial races typically attract. (In an ironic twist, Democrats themselves could wind up giving LaHood more motivation to run if they try to make his congressional district bluer or combine him with another Republican.)

Should Republicans get their way and succeed in revamping the redistricting process, it's easy to illustrate just how damaging districts that prioritize compactness and other nonpartisan criteria while ignoring fairness could be. The map below (see here for a larger version) is a hypothetical example of just such an approach.

While these seemingly "clean" lines might look pleasing to the naked eye, the patterns they hold are troubling. Daily Kos Elections has calculated key demographic and election result statistics for these districts, which show that during the prior decade, no fewer than four different Democratic candidates for statewide office won their races but lost a majority of districts under this map—an outcome directly at odds with the fundamental notion in a two-party system that the party that wins the most votes should also win the most seats.

Sen. Dick Durbin's successful reelection in 2014 best showcases this distortion: Despite his wide 54-43 margin, he would have carried only eight districts while his Republican opponent would have won 10. In fact, Durbin would have lost the median district in this scenario 50-46, putting it almost 15 points to the right of his statewide win.

With a headwind like that, Democratic candidates for the House would have been hard-pressed, and Republicans could have wound up controlling a majority of the delegation. The same thing would be eminently possible under a future map like this one (albeit with 17 districts, since Illinois is losing one seat due to reapportionment), and not just for Congress but for the legislature as well.

But Democratic lawmakers can go a long way toward ensuring fairer congressional and legislative maps if they simply redraw the long-neglected judicial map—something they are entirely empowered to do. And there's no need to gerrymander the lines: A nonpartisan approach that simply equalizes populations across districts would improve matters greatly.

The map below (see here for a larger version) features one such proposal. It converts the 3rd District from a hodgepodge of disparate communities that sprawls across the state into a more cohesive district concentrated in the Chicago suburbs. Not only would its population be far closer to the ideal, this revised district would have favored Biden by a 54-44 margin rather than backing Trump.

This new 3rd District would reduce the chance that Republicans could gain a majority on the bench, but even this map would still give the GOP a large advantage when looking at the median seat—just not as gargantuan as under the current disproportional map. For instance, in the 2014 Senate election, which Democrat Dick Durbin won 53-43, Republicans would nonetheless have won a majority of Supreme Court seats.

Consequently, more extensive long-term solutions are needed that go beyond merely redrawing these court districts. The wisest move would be to end judicial elections entirely in favor of a more merit-based appointment method like those that other states have created to insulate judges from the pressures of partisan politics. That, however, would require a constitutional amendment that involves a three-fifths vote in both legislative chambers followed by a statewide referendum, whereas simply redrawing the districts to equalize their populations would go through the ordinary legislative process.

By the same token, Illinois Democrats could also put in place an independent redistricting commission with a mandate to produce congressional and legislative maps that ensure fair outcomes from a partisan perspective, short-circuiting any conservative attempt to pass a reform-in-name-only at the ballot box. The political hurdles to implement such an overhaul would be immense, however. Drafting a new judicial map would be far easier—but the window to do so won't remain open for long.

Montana Republicans pass bill to gerrymander the same state Supreme Court that could rule on new GOP voting laws

After winning total control over state government in 2020 for the first time in 16 years, Montana Republicans have orchestrated an all-out assault on voting rights, democracy, and the rule of law that culminated in late April with GOP legislators voting to put a statutory measure on the November 2022 ballot that would effectively gerrymander Montana's Supreme Court to cement a future GOP majority if approved by voters next year.

The GOP's bill would replace the current system of using statewide elections to elect Supreme Court justices with using districts drawn by GOP legislators and redistricted by lawmakers every 10 years thereafter. According to calculations by Daily Kos Elections, the GOP's proposed 2020s court districts could have seen Republican candidates lose the statewide vote by 7 points yet still carry a majority of seats last year. Republicans would thus likely be favored in a 5-2 majority of seats, whereas the court currently lacks a secure majority for either party and has seen the all-important swing justices side with Democrats in some recent major cases.

Republicans' attempt to gerrymander the state Supreme Court is especially notable because GOP lawmakers have also recently passed new voting restriction laws that immediately sparked a Democratic lawsuit arguing that they violate Montana's constitution, which the justices could eventually decide. The GOP's newly adopted laws include two that eliminated Election Day voter registration and adopted stricter voter ID requirements that limit student IDs in particular, while the GOP passed a third measure in the legislature in the final week of April that would revive a restriction on who may turn in someone else's mail ballot, something a court had struck down last year for discriminating against Native American voters.

Gerrymandering isn't the only tool that Republicans are using to try to take over the courts in Montana, and Republicans also recently passed a law that eliminated Montana's judicial nominating commission to give GOP Gov. Greg Gianforte free rein to appoint more partisan judges directly to the bench instead of having to choose from a list of potential nominees that commissioners screened based on supposed merit. The eliminated process was supposed to insulate the courts from the pressures of partisan politics, and its repeal has also drawn a lawsuit.

After heavily targeting voters and the judicial branch, Montana Republicans turned their sights to the legislative branches on Tuesday when they rushed a separate bill through the legislature to impose additional criteria on Montana's bipartisan redistricting commission, prioritizing criteria that favor Republicans such as compactness over other factors that don't and prohibiting commissioners from intentionally using partisan data to ensure fairness. Just like all of the above power grabs Republicans that have advanced, this bill too is likely to face a lawsuit as soon as Gianforte signs it, since the commission was created by a 1972 constitutional amendment and previous GOP attempts to shackle it by statute have been struck down.

Completing the GOP's attempts to entrench their power over the legislative and judicial branches and by limiting the electorate, Republicans lastly passed legislation for Gianforte to sign that aims to ward off future progressive ballot measures. That bill bans citizens from using ballot initiatives to expand eligibility for government programs after voters narrowly failed to pass a measure to expand Medicaid in 2018 and prohibits initiatives from appropriating revenue anywhere besides the state's general fund after a voter-approved 2020 marijuana legalization measure dedicated the resulting tax revenue to land conservation efforts.

The ballot measure restrictions would also insert warnings on the petitions that voters must sign to qualify initiatives for the ballot whenever the proposal would supposedly hurt businesses. The bill would grant lawmakers the power to vote on whether or not they approve of proposed ballot initiatives before supporters could begin gathering signatures, the results of which votes would also be included on petition-signature forms, meaning the GOP legislature would be able to put its thumb on the scale in ways that initiative proponents simply couldn't.

2020 election delivered a crippling blow to fair elections for the coming decade — thanks to the Supreme Court

Nov. 3 delivered a crippling blow to fair elections for the coming decade after Republicans scored a sweeping victory in the battle for control over redistricting following this year's census, giving them the power to gerrymander up to half of the country. The GOP is poised to draw four or even five times as many congressional districts as Democrats, almost as extreme as the advantage the party enjoyed following the 2010 wave.

But not only did Republicans secure their grip on the cartographer's pen across the country, they could also see the potency of their gerrymanders get turbocharged thanks to the radical new 6-3 majority on the Supreme Court. The future of redistricting depends heavily on what the court's new far-right majority does in three different areas:

  1. First, the court could remove remaining state-level checks on GOP legislatures, such as the ability of state courts to policy gerrymandering.
  2. Second, it could gut what remains of the Voting Rights Act and finish the job Chief Justice John Roberts started in 2013, which would particularly worsen gerrymandering in the South, particularly discriminating against Black voters and the Democrats they heavily support.
  3. Finally, the court could let Republican lawmakers draw districts based on eligible voters instead of the broader total population, further exacerbating the GOP's domination and hurting people of color.

The Supreme Court isn't the only threat, though, and it remains unclear just how much damage Donald Trump has done to corrupt the accuracy of the 2020 census. Let's delve into each of these areas, including the options Democrats have left for fighting back.

The court's most wide-reaching impact could come if it upends a bedrock of two centuries of federalism by accepting an extreme and unprecedented view of the U.S. Constitution's "Elections Clause." That clause, found in Article I, Section IV, gives the "legislature" in each state the power to set the "times, places, and manner of holding" federal elections—though it adds that Congress "may at any time make or alter such regulations"—which is why, for instance, there's a federal law from the 19th century setting a uniform date for congressional elections.

Republicans have argued in several ongoing cases over uncounted absentee ballots that this clause only empowers the state legislature itself. That claim would exclude all those who hold the power to set or interpret laws under state constitutions, such as state courts, voters (via the ballot initiative process), or potentially even governors when they exercise their veto powers.

The Supreme Court rejected this radical interpretation of the Elections Clause in a 5-4 ruling in 2015 that upheld the right of Arizona voters to strip their Republican-run legislature of the power to draw new maps through a 2000 ballot initiative that established an independent redistricting commission. However, two of the justices in the majority in that ruling, Ruth Bader Ginsburg and Anthony Kennedy, are no longer on the court and have since been replaced by justices much further to the right.

Chief Justice John Roberts wrote an angry dissent in the Arizona case and was joined by Samuel Alito and Clarence Thomas, all of whom of course still serve on the court. Neil Gorsuch, meanwhile, has signaled that he would accept this unfounded legal theory in a pending case over late-counted mail ballots in Pennsylvania, and Brett Kavanaugh appears likely to join his nihilistic colleagues. Amy Coney Barrett hasn't weighed in on the issue only because she didn't have time to do so before Election Day.

If the Supreme Court does hold that only literal state legislatures may set federal election laws absent congressional intervention, independent redistricting commissions enacted by initiatives placed on the ballot by ordinary citizens could get struck down in Arizona, California, and Michigan. It would also eliminate the possibility of setting up independent commissions through future initiatives in states like Arkansas, Florida, Oklahoma, and more.

The court could even go further and strip governors of their ability to veto new redistricting plans, if indeed only "legislatures"—free from gubernatorial involvement—can determine how elections are run. Such a move would disproportionately benefit Republicans, since it would bar many more Democratic governors in states with Republican-run legislatures (such as Louisiana, Michigan, Pennsylvania, and Wisconsin) from blocking new gerrymanders than vice versa.

Should this most extreme state of affairs come to pass, the only solution for Democrats would be to win control of more legislatures, but they'd be fighting on gerrymandered maps deliberately tilted against them.

The second grim scenario, which is the likeliest to transpire, would largely impact gerrymandering in states Republicans already control. Specifically, the Supreme Court could eviscerate the rest of the Voting Rights Act (VRA) by invalidating Section Two of the VRA's ban on laws that have a discriminatory effect on voters. Chief Justice John Roberts has in fact spent his four-decade career in Washington trying to do just that, and he now has five allies on the bench—and only four are needed.

The court may gut Section Two either by finding it unconstitutional or by making its test for showing discriminatory impacts impossible to satisfy, the latter of which it could do in an Arizona voting case it will hear next year. That would eliminate the requirement stretching back three decades that maps be drawn to create districts where voters belonging to racial and ethnic minorities, like Blacks and Latinos, can elect their chosen candidates. Republicans could gain perhaps as many as a dozen more congressional seats, concentrated largely in the South, and the impact on certain state legislatures would be even more dramatic.

Lastly, the Supreme Court could make GOP gerrymandering worse by allowing Republicans to draw districts based solely on the eligible voter population instead of the total overall population, which has been the longstanding norm. Not only is the eligible voter pool whiter, it also excludes children, noncitizens, and potentially even some of the 5 million Americans disenfranchised due to felony convictions.

Using the voter population would make Republican gerrymandering more potent in several key states such as Texas, where communities with large Latino populations that lean Democratic are typically much younger and have many more noncitizen immigrants than whiter communities with fewer children.

Furthermore, people disenfranchised due to felony convictions are disproportionately Black and concentrated in Southern states such as Mississippi, which bans one in six Black citizens from voting for life, three times the rate of whites. A 2019 expose of leaked documents confirmed that Republicans have been plotting to bring this change about, and the Supreme Court did not eliminate the possibility in a 2016 ruling.

However, one key wrinkle in this plan is that the Supreme Court refused to let Trump place a citizenship question on the census last year. Trump subsequently ordered the Census Bureau to use existing administrative records to match citizenship data from other sources with the granular type of census data needed for redistricting. However, Joe Biden could block the release of such data, and litigation over it appears likely.

But even if citizenship data is unobtainable for redistricting, age data won't be, and the full adult population is still whiter than the total population, especially in places like Texas. However, Trump has also tried to sabotage the accuracy of the census by rushing an incomplete count, the damage from which is yet unknown.

Despite all this, Democrats and reformers still have a number of ways to fight back. The most important target right now is to win two Jan. 5 runoffs for the Senate in Georgia, which would split the chamber at 50 seats apiece. If, as looks likely, Joe Biden wins the presidency, Kamala Harris could break ties as vice president.

Should that come to pass, Democrats could eliminate the filibuster and pass legislation in Congress to ban congressional gerrymandering by mandating independent commissions in every state. They could also reform the Supreme Court in a variety of different ways, including by adding more seats.

Options also remain at the state level for as long as the Supreme Court's hardliners back away from the ledge and don't blow up the foundation of federalism. In a silver lining, voters in Arkansas, Florida, and North Dakota all rejected GOP-backed ballot measures this year that would have made future progressive ballot measures much harder, if not impossible. Arkansas and North Dakota, meanwhile, were poised to vote on redistricting reform measures in 2020 before GOP-dominated courts threw them off the ballot, so future efforts this decade could yet succeed.

But this year's elections have already brought dire news even if worst-case scenarios don't come to pass. After a lost decade following 2010 in which Republicans repeatedly won control of key states such as Michigan, North Carolina, Pennsylvania, and Wisconsin despite Democrats winning more votes, Republican minority rule is becoming self-entrenching in many states. 2020 was a key opportunity to level the redistricting playing field in many states and protect majority rule, but Republican wins have ended those hopes.

Yet even if the Supreme Court does take this country down the darkest possible paths, all hope is not lost. Examples abound of countries bringing democracy back from the brink, including a recent one nearby.

Last year, millions of citizens in Chile organized massive street protests amid widespread discontent triggered in part by a Supreme Court that kept thwarting the country's left-of-center governments. These protests led to a peaceful revolution that culminated last month with Chileans voting to write a new constitution.

Americans still have other avenues for redress, but whatever conclusions we draw from them, this week's election showed that our country remains home to a majority that believes in democracy and wants to see the will of the people honored.

Here are the key 2020 court battles that are taking shape as Supreme Court threat to mail votes looms

LEADING OFF

Supreme Court: This week, the Supreme Court set the stage for what could be the most important legal battle of the 2020 elections with its rulings in major cases over whether mail ballots may count if they are postmarked by Election Day but received afterward.

These cases rely on a radical constitutional theory that would effectively overturn the foundation of federalism and eliminate state-level judicial review when state courts try to safeguard voting rights from hostile GOP legislatures. In a worst-case scenario, this approach could allow the Supreme Court's far-right majority to throw out thousands if not millions of valid absentee ballots and potentially change the outcome of the election.

The conservative justices first reversed a lower court ruling in Wisconsin allowing postmarked ballots to count while refusing to overturn a state Supreme Court ruling in Pennsylvania that did permit such ballots count and a settlement by North Carolina officials extending the deadline by when postmarked ballots must be received after Election Day.

Shortly after those rulings came down, a panel of mostly conservative judges on the 8th Circuit Court of Appeals issued one of the most flagrantly partisan and undemocratic decisions in years to disqualify postmarked ballots in Minnesota—a ruling that experts lambasted as "outrageous" and "indefensibly wrong" as we'll explain below.

While North Carolina and Pennsylvania decisions appear on the surface to be victories for voting rights, they may be short lived, because the issues of postmarked ballots could swiftly return to the Supreme Court after Election Day. It's very possible the court's new hardline right-wing majority could invalidate votes after Election Day even though they were properly cast at the time voters mailed them, an outcome that would be an unprecedented judicial abrogation of the right to vote.

If voters have not already voted, they should forget about returning their absentee ballots by mail and risk them not arriving on time. To mitigate the impact of a hostile judiciary, they should instead return their mail ballots at a drop-box, polling place, or local elections office if their state or locality allows it, and if that isn't an option, voters should vote in-person and do it early if that's allowed where they live.

Common to many of these cases above are two legal principles, once of which stems from a 2006 Supreme Court ruling called Purcell v. Gonzales that gave rise to the so-called "Purcell principle." That principle says courts should be sternly reluctant to change election laws or procedures close to an election in an effort to avoid voter confusion or strains on election administration. Even when some election rules may be unconstitutional, federal courts are supposed to apply a much higher burden for overturning them to avoid creating chaos (state courts operate under different procedures varying based on state constitutional law).

Citing Purcell, the Supreme Court's conservatives refused to overturn a 7th Circuit Court of Appeals decision that overturned a lower court ruling requiring postmarked ballots to count in Wisconsin. But while the Supreme Court in Purcell did not say that no changes may ever be made when an election is near, many conservative judges have interpreted that guideline this year to block any relief for plaintiffs no matter how egregious the alleged constitutional violations.

The extraordinary circumstances of the pandemic, combined with Donald Trump's ongoing sabotage of the postal service creating unprecedented delays in mail delivery service, could very well have entitled the plaintiffs to relief in Wisconsin and many related lawsuits. Yet in case after case where lower federal courts have blocked GOP voting restrictions due to the pandemic, the conservatives on the Supreme Court and courts of appeals have overturned such rulings by citing Purcell regardless of how serious the violation of constitutional rights, with the high court often granting emergency stays that don't require it to provide any written explanation.

Right-wing judges over the last few weeks have brazenly wielded Purcell as a partisan cudgel against Democrats by selectively enforcing it to almost-consistently benefit Republicans and hurt voters. The Minnesota ruling in particular offers a stark illustration.

In that case, an 8th Circuit panel ruled 2-1 along ideological lines that Democratic Secretary of State Seve Simon had likely exceeded his powers and usurped the legislature's authority when he agreed three months ago in a lawsuit to count postmarked ballots received up to Nov. 10. The 8th Circuit directed Simon to segregate any postmarked ballots that arrive after Election Day as the case proceeds in case it finds his actions unlawful, strongly implying that the judges will toss out those ballots after Election Day when they issue a final ruling on the merits.

Granting a GOP lawsuit filed in September with just weeks to go, the court in Minnesota itself changed election procedures with just five days left until Election Day and after some mail voters had already voted with the postmark provision in mind. That outcome makes a mockery of Purcell by treating it as a one-way partisan ratchet for the GOP in which Republicans are allowed to wage last-minute challenges to attack voting rights—even changing the rules after ballots have been cast—but Democrats aren't allowed to do so to protect them.

Likely anticipating the catastrophic effects of an adverse ruling that could come from a potential appeal, Simon and Minnesota Democrats announced on Friday that they would hold off on trying to overturn the 8th Circuit ruling. Simon emphasized that "there is no ruling yet saying those ballots are invalid" and that Minnesota reserves "the right to make every argument after Election Day that protects voters."

While Purcell has largely guided federal courts, state courts operate under different rules due to two centuries of precedents establishing the guidelines of federalism, the second principle common to these cases. For that reason, it's particularly alarming that the Supreme Court has even considered potentially overturning state Supreme Court rulings in Pennsylvania and North Carolina where those courts were adjudicating issues based solely on state constitutional concerns without any questions of federal law at issue in good faith.

The Supreme Court left a ruling by the Democratic majority on Pennsylvania's Supreme Court in place when, for the second time in recent weeks, it refused the GOP's request for a stay that would block ballots postmarked by Election Day and received up to three days later. In two separate lawsuits over a settlement where the Democratic majority on North Carolina's state Board of Elections extended the deadline by when postmarked ballots must be received from Nov. 6 to Nov. 12, the Supreme Court refused to overturn a federal lower court ruling and refused to reverse a ruling by the majority-Democratic state Supreme Court that had upheld the settlement just days prior.

But each of these cases remain ongoing, and their fates appear ominous for voting rights based on how the justices ruled on the requests for the stays and Justice Brett Kavanaugh's separate opinion in the Wisconsin case. Three justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch all would have gone nuclear in North Carolina and Pennsylvania by granting the stays, accepting an extreme and unprecedented view of the U.S. Constitution's Elections Clause.

The Elections Clause gives the "legislature" in each state the power to set the "times, places, and manner of holding" federal elections (though Congress "may at any time make or alter such regulations"). Republicans argue in these cases and in Minnesota that this clause only empowers the state legislature itself, not those who hold the power to set laws under state constitutions such as state courts, voters (via the ballot initiative process), or potentially even governors when they exercise their veto powers.

The Supreme Court rejected this interpretation of the Elections Clause in a 5-4 ruling in 2015 upholding the right of Arizona voters to strip their GOP-run legislature of the power to control redistricting by using a 2000 ballot initiative to create an independent redistricting commission. However, two of the justices in the majority in that ruling, Ruth Bader Ginsburg and Anthony Kennedy, are no longer on the court and have since been replaced by justices much further to their right.

While Thomas, Alito, and Gorsuch are not a majority on their own, Kavanaugh strongly cast doubt on the legality of counting postmarked ballots that arrive after Election Day in his Wisconsin ruling, a decision that drew fierce criticism over factual inaccuracies and Kavanaugh's having concocted a notion that "states also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter." Especially worrisome is that Kavanaugh approvingly cited a theory in the Supreme Court's infamous case Bush v. Gore, which decided the 2000 election for George W. Bush.

Kavanaugh's statement appears to support Trump's bogus claims that votes counted after Election Day, potentially even those that were received and not just postmarked by Election Day, are somehow illegitimate, and it's at odds with two key facts. First, no state does or ever has had official declarations of a winner on Election Night, and every state counts ballots such as provisionals and military ballots from abroad in the days or even weeks afterward. Federal law acknowledges as much by setting Dec. 8 as the last day to certify votes ahead of the Dec. 14 vote by Electoral College electors.

Second, the Republican legislatures in Wisconsin and Pennsylvania, both of which saw Democrats win more votes in 2018 but the GOP win gerrymandered majorities anyway, have refused to pass laws that would allow election workers to even begin preparing absentee mail ballots for counting ahead of Election Day. Nearly every other state lets workers begin processing such votes early even if they may still have to wait until Election Day to count them, and Pennsylvania and Wisconsin's inability to do so could drag out the vote counting past Election Night.

Because Trump's demagoguery against mail voting has meant that Democrats are voting by mail at much higher rates than Republicans, Trump has made it clear that he plans to try to overturn an election loss by claiming victory on Election Night based on a partial count even in the likely event that late-counted mail ballots ultimately cause him to lose. While Kavanaugh did not side with his three colleagues who would have granted these stays, he left little doubt where his inclinations lie on the merits.

That leaves new Justice Amy Coney Barrett, who did not weigh in on the requests for the stays. However, Barrett made clear via a spokesperson that she was not recusing herself but had simply not had time to get caught up to speed on the briefings, something that won't necessarily be the case if these cases return to the Supreme Court in the coming days. Trump himself has let slip that he rushed Barrett's appointment to the court just eight days before Election Day precisely because he wanted her to decide the election in his favor.

Consequently, there is a dire risk that all of the Supreme Court's conservatives aside from Chief Justice John Roberts could rule after Election Day against counting these postmarked ballots. Such a ruling would be an unprecedented assault on the sanctity of the election and a denial of due process afforded to voters in countless past cases, and such an outcome could spark a historic public backlash against the court itself.

If there's one silver lining, it may be that the potential for backlash could give the conservative hardliners pause to avoid giving congressional Democrats the public standing they would need to expand the Supreme Court by adding new justices in response. Furthermore, the potential margin of Trump's defeat itself may play into Kavanaugh and Barrett's willingness or lack thereof to brazenly discard votes, and if the polls are anywhere near close to the mark, Trump is poised to decisively lose next week.

Nevertheless, the fact that five justices on the Supreme Court appear very open if not eagerly willing to upend two centuries of established law, all to help a historically unpopular and authoritarian president cling to power in the face of a looming decisive defeat, is itself ample reason for Democrats to reform the court itself should they nevertheless overcome these barriers and win the presidency and Senate on Tuesday.

If they don't, the Supreme Court's conservative hardliners could make nakedly partisan rulings attacking the right to vote for years if not decades to come.

(Note: Daily Kos Elections contributing editor Arjun Jaikumar is representing a party in this Pennsylvania litigation. He took no part in the production of this writeup.)

FELONY DISENFRANCHISEMENT

Tennessee: A state court has dealt a setback to voting rights advocates by ruling that Tennessee is not required to alter its felony disenfranchisement regime to restore voting rights to people with felony convictions from other states based on how the state where they were convicted treats voting rights for such individuals.

Felony disenfranchisement is more restrictive in Tennessee than almost anywhere else in the country, requiring voters to have completely served all parts of their sentence including prison, parole, and probation, and some of the most serious offenses result in lifetime disenfranchisement. Furthermore, Tennessee requires the payment of court fines and fees before voters may regain their rights, which results in post-sentence disenfranchisement potentially for life for those unable to pay off such assessments.

Consequently, 9% of Tennesseans are banned from voting, nearly the highest rate of any state, including 22% of Black voters, which is the highest rate in the country after several states have adopted reforms to lessen their disenfranchisement rates in the last several years. It's unclear how many of those affected would see their rights restored if Tennessee treated out-of-state convictions similarly to how those voters would have been treated in their native states.

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.

Alaska: The Alaska Supreme Court, which has a GOP-appointed majority, has rejected a lawsuit asking that voters be notified of any problems with their mail ballots and be given a chance to fix them before Election Day. The state already requires officials to notify voters of any issues after the election.

Arkansas: A federal court has rejected a lawsuit asking that Arkansas voters be notified of any problems with their mail ballots and be given a chance to fix them. Arkansas is one of only four states that does not give voters the opportunity to address any alleged signature mismatches.

Separately, voting rights advocates have filed a lawsuit in state court challenging a state law that says that absentee ballots may only be counted on Election Day. Election officials say they plan to keep counting such ballots "regardless of how long it takes to complete the process." It appears that the case has since been transferred to a federal court.

Georgia: Republican-appointed judges on the 11th Circuit Court of Appeals have stayed a lower court ruling that required election officials to maintain paper backups of voter registration records at polling sites in the event of failures with the state's electronic voter check-in system that marred Georgia's June primary.

Missouri: A Missouri state court has rejected a lawsuit seeking to count mail ballots postmarked by Election Day and received within a few days. The court also declined to block a pair of state laws: one requiring that only voters under 65 have mail ballots notarized (elderly voters, who are exempt, typically lean Republican) and another prohibiting voters from returning mail ballots in person.

South Carolina: A federal court has ordered election officials not to reject mail ballots due to alleged signature mismatches and says that officials must also review any ballots that were previously rejected on such grounds. Ballots with missing signatures from voters or witnesses, however, will still not be accepted.

Texas: Conservative judges on the 5th Circuit Court of Appeals have blocked a lower court ruling that held that an exemption in Texas' mask mandate for voters and poll workers violated the Voting Rights Act. Separately, the Texas Supreme Court upheld Republican Gov. Greg Abbott's order limiting election officials to just one mail return location per county.

Taken together, it's particularly cynical of Republican state Attorney General Ken Paxton to argue that the mask mandate violates voters' right to vote when he has personally ensured that many such voters have no alternative but to vote in-person after Paxton successfully fought in court against efforts to liberalize access to mail voting.

Meanwhile, a group of Republican activists and candidates have asked the state Supreme Court to throw out all ballots cast at curbside voting locations in Harris County. The court previously rejected similar challenges filed by Republicans, but an adverse ruling here could disenfranchise over 100,000 voters if the high court grants this request.

Virginia: A Virginia state court has ruled that ballots lacking a postmark can't count if they arrive after Election Day.

Wisconsin: A Wisconsin state court has dismissed a lawsuit seeking a declaration that mass ballot dropoff events in Madison were legal, saying that organizers who brought the suit and the city officials named as defendants were not in disagreement. Republicans had threatened to sue to block the events, known as "Democracy in the Park," but no such lawsuit ever came.

Majority of Supreme Court now confirmed by senates where Republicans represented fewer Americans than Dems

On Monday, Senate Republicans confirmed Amy Coney Barrett to the Supreme Court and in doing so have officially brought minority rule to the highest court in the land: Five of the six conservative justices—a majority of the Supreme Court—have been confirmed by senates with Republican majorities that represented fewer Americans than their corresponding Democratic minorities.

Further underscoring this development, three of those five justices—Barrett, Neil Gorsuch, and Brett Kavanaugh—were appointed by a president who lost the popular vote, while the other two—John Roberts and Samuel Alito—by a president who likewise lost the popular vote for his initial term and might never have become president without that Electoral College victory. Among the conservatives, only Clarence Thomas was both appointed by a president who won the popular vote and a Senate where the majority party represented more Americans.

It isn't just the lack of popular support that delegitimizes this new Supreme Court majority: Republicans violated two centuries' worth of norms to obtain it, first with their blockade of Merrick Garland nomination and now with Barrett's rushed confirmation.

Fabricating a bogus precedent against election-year confirmations, Republicans refused to even give Garland a hearing despite the fact that there was nearly a year left in Obama's presidency. (Democrats, by contrast, had confirmed the conservative Anthony Kennedy in 1988, the last time prior to 2016 that a Supreme Court seat was vacant during an election year.) Four years after inventing reasons to torpedo Garland, Republicans then predictably turned around and confirmed Barrett a mere eight days before Election Day—and after roughly two-fifths of voters have likely already cast their ballots.

With this ill-won majority of radicals, the Supreme Court is poised to gut the rule of law, render the Voting Rights Act a dead letter, and give a green light to GOP gerrymandering and voter suppression efforts, all so that Republicans can permanently entrench minority rule at every level of government. Donald Trump himself has openly stated that he wanted Barrett on the court before the election so that its conservatives would decide the outcome in his favor. Just days ago, four justices were willing to blow up the foundation of federalism to further Republican suppression of the vote, and Barrett may soon give them a majority in the likely event that that case returns to the court—or if not, shortly thereafter.

Since 2010 elections swept them into power across the country, Republicans have passed restrictions on the right to vote in state after state, abetted by conservative judges confirmed by the very same Senate majorities the GOP has held while representing fewer Americans than Democrats. If Democrats nevertheless overcome these barriers to voting in 2020 by winning the presidency and both chambers of Congress, it may be their last chance for the foreseeable future to rescue American democracy from Republican efforts to lock in minority rule.

The radical-right majority on the Supreme Court comes with lifetime tenure, so the conservative justices may well play the long game and draw out rulings that risk sparking a public backlash that could bolster the case for reforming the courts. If they take their time with overturning Roe v. Wade, striking down Obamacare, and invalidating what remains of the Voting Rights Act, it could then be too late for Democrats to do anything about it. Democrats must therefore act before the 2022 midterms because the GOP could regain the House, Senate, or both.

It starts with eliminating the filibuster so that an empowered Congress can rebalance the Supreme Court, potentially by adding four or more justices. A fair-minded court is necessary to protect any further reforms, such as a new Voting Rights Act, statehood for Washington, D.C., and banning gerrymandering.

If Democrats fail to do so, however, Barrett and her fellow partisan activists will roll back much of the progress of the last century while making it impossible for Democrats to govern—if they're even able to win elections again in the first place. Indeed, with his party looking likely to get swept out of power next week, Senate Majority Leader Mitch McConnell has openly admitted as much. "A lot of what we've done over the last four years will be undone, sooner or later, by the next election," he conceded.

But regarding Barrett's confirmation—and by extension Trump's litany of judicial appointments at all levels—he gloated that the results of the election "won't be able to do much about this for a long time to come." McConnell will only be right if Democrats do not act.

These are the 2020 state races to watch for determining how redistricting plays out after the census

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. Below, we'll look at key elections for governor, state legislature, and ballot measures in the states that could change who's in charge of the redistricting process for the coming decade, and be sure to bookmark the spreadsheet version of this info since we'll update it as results come in.

As things stand, 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 like Texas, North Carolina, and Pennsylvania and help level the playing field.

Note that seat counts for state legislative chambers count third parties or independents with the major party they lean toward if any, and totals are based on the last party that held any vacant seats.

ARIZONA

  • Governor: Republican (up in 2022)
  • State Senate: Republican (17 R, 13 D)
  • State House: Republican (31 R, 29 D)

Arizona has had an independent redistricting commission in place since 2000, but there's a significant risk that the Supreme Court will strike down all commissions that were passed by citizen-initiated ballot measures, especially if Judge Amy Coney Barrett joins the court. Republicans control the governorship, but Democrats have an excellent shot at flipping one or both chambers this year.

That would lead to a divided government in case the commission gets struck down, meaning that, barring a bipartisan compromise, new maps would likely be drawn by the courts, which habitually favor nonpartisan districts. Republicans in the legislature have also repeatedly sought to undermine the commission, so ending the GOP's control of state government would help insulate the panel.

CONNECTICUT

  • Governor: Democratic (up in 2022)
  • State Senate: Democratic (22 D, 14 R)
  • State House: Democratic (91 D, 60 R)

Connecticut requires supermajorities to pass new maps, so Democrats would need to win two-thirds of all seats in the legislature to gain control over redistricting. It's a reach, but isn't totally implausible with Donald Trump weighing down the GOP ticket. If Democrats don't do so, it would take bipartisan support to drew new lines, otherwise the courts would get involved.

FLORIDA

  • Governor: Republican (up in 2022)
  • State Senate: Republican (23 R, 17 D; half of seats up)
  • State House: Republican (73 R, 47 D)

Florida voters passed two ballot initiatives in 2010 to try to ban gerrymandering, but the state Supreme Court has taken a lurch far to the right after Republican Gov. Ron DeSantis won in 2018 and is unlikely to enforce the amendments to curb GOP gerrymandering. However, if Democrats pull off an upset and flip either chamber, they could force a deadlock, requiring a court to step in to craft new maps in the absence of the two parties working out a deal.

GEORGIA

  • Governor: Republican (up in 2022)
  • State Senate: Republican (35 R, 21 D)
  • State House: Republican (106 R, 74 D)

Georgia Democrats would have to flip the state House to break the GOP's full control of state government, but that's a daunting task since the chamber is already heavily gerrymandered to benefit the GOP and the state Senate is even worse. However, a Democratic House majority can't be ruled out if 2020 turns into a true blue tsunami in the Atlanta suburbs. If that happens, redistricting would get handed to the courts unless both sides negotiate an agreement.

IOWA

  • Governor: Republican (up in 2022)
  • State Senate: Republican (32 R, 18 D; half of seats up)
  • State House: Republican (53 R, 47 D)

A nonpartisan agency has for decades proposed maps to the Iowa legislature, which has always adopted them. However, if Republicans remain in power following the November elections, next year would be the first time in several decades under this system that one party has unified control over state government, which would allow the GOP to simply reject the agency's proposals and implement their own gerrymanders. But Democrats have a realistic chance of capturing the state House next month. In that case, lawmakers would be likely to once again accept the agency's maps.

KANSAS

  • Governor: Democratic (up in 2022)
  • State Senate: Republican (29 R, 11 D)
  • State House: Republican (84 R, 41 D)

Democrats need to flip just a single state House seat or three state Senate seats to break the GOP's nominally veto-proof majorities. That would allow them uphold Democratic Gov. Laura Kelly's vetoes, including of a possible gerrymander that the Republican Senate leader was recently caught on tape vowing to fight for. Republicans have been running well behind their normal showing in Kansas polling this year, so Democrats may even be favored to break the GOP's supermajorities. If that happens, redistricting would be very likely to fall to the courts.

MICHIGAN

  • Governor: Democratic (up in 2022)
  • State Senate: Republican (22 R, 16 D)
  • State House: Republican (58 R, 52 D)

Like Arizona, Michigan also has an independent redistricting commission, but while it's new for the 2020 cycle, it too could get invalidated by the Supreme Court. Even if it survives, though, litigation over the eventual maps the commission produces is likely, which is why it's critical for Democrats that they flip the state Supreme Court next month. If Chief Justice Bridget Mary McCormack and attorney Elizabeth Welch prevail in these nominally nonpartisan elections, Democrats would turn the GOP's 4-3 advantage into a 4-3 majority of their own.

Michigan Democrats also have a good chance to overcome one of the most persistent GOP gerrymanders in the nation and finally regain the state House (the state Senate is not up until 2022).

MINNESOTA

  • Governor: Democratic (up in 2022)
  • State Senate: Republican (35 R, 32 D)
  • State House: Democratic (75 D, 59 R)

Democrats have an excellent opportunity to flip the two net seats needed to regain control of the state Senate while holding onto their newly won state House majority, which would give one party full control over redistricting in Minnesota for the first time in the modern era. That could make it one of the rare states that Democrats could gerrymander, although as we saw in Virginia earlier this year (see our item on the state below), there's no guarantee they'd do so, especially since some of the party's candidates this year are running on a platform of redistricting reform.

MISSOURI

  • Governor: Republican
  • State Senate: Republican (24 R, 10 D; half of seats up)
  • State House: Republican (116 R, 47 D)

Missouri voters passed an initiative in 2018 to reform the existing bipartisan legislative redistricting commission by adding a nonpartisan expert to propose maps to lawmakers using an explicit partisan fairness formula, but Republicans have placed a deceptive measure called Amendment 3 on the ballot that would gut this reform. To keep this commission in place under the revised rules, voters will have to defeat the GOP's amendment.

Congressional redistricting, meanwhile, is still handled by the legislature and governor. To block a GOP gerrymander, Democrat Nicole Galloway would have to pull off an upset victory against Republican Gov. Mike Parson. Democrats would also have to overcome hostile districts to break the GOP's veto-proof two-thirds majority in at least one chamber of the legislature. Should both of these things happen, a court-drawn congressional map would be likely.

NEBRASKA

  • Governor: Republican (up in 2022)
  • State Senate: Republican (30 R, 19 D; half of seats up)

Republicans control Nebraska's unicameral and nominally nonpartisan legislature, but they lack the two-thirds supermajority needed to overcome a filibuster of any new gerrymanders unless they gain three seats, an unlikely outcome with the districts that were last up in Trump's 2016 romp. The GOP could also eliminate the filibuster with a simple majority, but it's far from clear that enough Republican lawmakers are willing to make that move. If the status quo prevails, new maps would be handled by the courts.

NEW HAMPSHIRE

  • Governor: Republican
  • State Senate: Democratic (14 D, 10 R)
  • State House: Democratic (234 D, 166 R)

The most likely outcome according to the polls is that Democrats retain their legislative majorities in New Hampshire while Republican Gov. Chris Sununu wins another term and maintains the ability to veto Democratic-drawn districts. However, it's possible that Sununu could still lose to Democrat Dan Feltes if the bottom truly falls out for the GOP, which would allow Democrats to pass their own maps.

NEW JERSEY

  • Governor: Democratic (up in 2021)
  • State Senate: Democratic (25 D, 15 R; up in 2021)
  • State House: Democratic (52 D, 28 R; up in 2021)

New Jersey's Democratic Gov. Phil Murphy and the heavily Democratic legislature don't face the voters again until 2021, after legislative redistricting is supposed to take place. However, if Democratic legislators get their way, redistricting would be pushed back to the 2023 election cycle if voters pass Question 3 and the census doesn't provide the data lawmakers need by Feb. 15. Delaying redistricting two more years would further disadvantage the state's growing Asian and Latino populations, likely to the benefit of white Democratic incumbents in primaries.

No matter which year New Jersey conducts its redistricting, the process will see two bipartisan commissions (one for Congress and one for the legislature) appointed by a combination of legislative leaders and state party leaders calling the shots, so Democrats won't have the chance to adopt extreme partisan maps regardless of how 2020 turns out.

NEW YORK

  • Governor: Democratic (up in 2022)
  • State Senate: Democratic (40 D, 23 R)
  • State Assembly: Democratic (107 D, 43 R)

New York has a bipartisan redistricting commission appointed by lawmakers, but legislators could override the commission's recommendations and pass maps to their own liking if they have a two-thirds supermajority. Democrats are just two seats shy of the two-thirds mark in the state Senate and are likely to maintain their supermajority in the Assembly.

However, many Democratic lawmakers in New York have often been all too happy to ignore their party's broader interests if it means getting a seat that's safe from a primary challenger. It's therefore unclear whether Democrats would even be able to pass aggressive partisan gerrymanders even if they were to win supermajorities.

NORTH CAROLINA

  • Governor: Democratic
  • State Senate: Republican (29 R, 21 D)
  • State House: Republican (65 R, 55 D)

North Carolina has seen the worst and most pervasive Republican gerrymandering of any state in modern history, and those battles are likely to continue if Republicans keep control of the legislature this year, since Democratic Gov. Roy Cooper is unable to veto most redistricting bills. However, Democrats have a chance to solidify their 6-1 majority on the state Supreme Court and could even sweep the court if they win all three seats up this year.

State courts curtailed the GOP's gerrymanders last year, but while those court rulings curbed the worst excesses of Republican gerrymandering, they didn't entirely eliminate the problem, and judicial review is not guaranteed to succeed again given the increasingly radical proceduralism by the U.S. Supreme Court. Fortunately, Democrats have a very real chance to flip the state House and possibly even the state Senate this year despite the flawed maps.

OHIO

  • Governor: Republican (up in 2022)
  • State Senate: Republican (24 R, 9 D; half of seats up)
  • State House: Republican (61 R, 38 D)

Ohio's legislature is almost hopelessly gerrymandered by Republicans, but if Democrats Jennifer Brunner and John O'Donnell oust both GOP incumbents up for election to the state Supreme Court, Democrats would gain a 4-3 majority on the bench. Such a majority could mean the difference between actually enforcing the protections added to Ohio's constitution in a 2018 bipartisan deal to reform congressional redistricting, or whether those provisions remain toothless, as Republicans intended them to be.

OREGON

  • Governor: Democratic (up in 2022)
  • State Senate: Democratic (18 D, 12 R; half of seats up)
  • State House: Democratic (38 D, 22 R)

In 2019, Oregon Republicans repeatedly fled the state to deny Democrats the two-thirds legislative supermajority needed for a quorum to conduct any business, successfully defeating a Democratic bill to enact climate protections. They're likely to repeat that move with redistricting next year if GOP state Sen. Kim Thatcher beats Democratic state Sen. Shemia Fagan for the open secretary of state's office, because if lawmakers don't pass new legislative districts by July 1, 2021, the secretary of state takes over the process,

Consequently, the secretary of state's office could be winner-take-all for either party, since Democrats have a firm grip on the legislative majority. If, however, the GOP once more succeeds at quorum-busting, a court would draw the congressional map barring a compromise. Democrats, though, have an uphill shot at gaining two-thirds control of the legislature outright if they gain two seats in each chamber, which would give them complete control over redistricting regardless of the secretary of state race.

PENNSYLVANIA

  • Governor: Democratic (up in 2022)
  • State Senate: Republican (29 R, 21 D; half of seats up)
  • State House: Republican (110 R, 93 D)

Like North Carolina, Pennsylvania's Supreme Court has a Democratic majority that, in 2018, issued a ruling striking down the GOP's congressional gerrymander. However, there's no guarantee that the court would draw another fair map after 2020 even if Democratic Gov. Tom Wolf once again blocks Republican legislators from passing an extreme gerrymander, especially if the U.S. Supreme Court interferes. Democrats have a plausible chance at flipping the state House next month and long-shot odds of flipping the state Senate. Even if they flip only one chamber, however, breaking the GOP's hold on the legislature could strengthen Democrats' hand in court or in negotiations on a compromise.

Since the state Supreme Court determines the majority tiebreaker on the bipartisan commission used for legislative redistricting, a Republican effort to pass a constitutional amendment that would effectively gerrymander the court could be even more consequential. The GOP passed their amendment earlier this year and would need to pass it again after 2020 before voters weigh in via a 2021 referendum, but a Democratic state House could stop that power grab dead in its tracks.

TEXAS

  • Governor: Republican (up in 2022)
  • State Senate: Republican (19 R, 12 D; half of seats up)
  • State House: Republican (83 R, 67 D)

The most important state for Republican congressional gerrymandering is Texas, and thanks to a gerrymander that overreached earlier this decade and failed to anticipate how Donald Trump would repulse once-reliable GOP voters, Democrats have a legitimately good chance of taking a majority in the state House. Indeed, Democrat Beto O'Rourke won a majority of seats in 2018 despite losing 51-48 overall to Ted Cruz.

A Democratic majority would break the GOP's full hold over congressional redistricting, likely prompting a court to draw the map, although Republicans would still retain control over legislative redistricting regardless thanks to a "backup commission" dominated by GOP officeholders. Nonetheless, a nonpartisan congressional map could mean several more Democratic seats (and greater Latino representation) following the 2022 elections, and could potentially determine control of the U.S. House that year.

While 2020's elections won't stop Republican gerrymandering at the legislative level, they could lay the groundwork for doing so in just a few years. That's because four of the nine seats on Texas' all-Republican Supreme Court are up this November, and if Democrats flip at least a few of those seats, they could take over the court as soon as the 2022 or 2024 elections and curb gerrymandering, as courts have done elsewhere in recent years.

VERMONT

  • Governor: Republican
  • State Senate: Democratic (24 D/I, 6 R)
  • State House: Democratic (107 D/I, 43 R)

Democrats and their third-party allies hold the two-thirds supermajorities needed to override popular Republican Gov. Phil Scott's vetoes and gerrymander the legislature (Vermont only has a single statewide congressional district), but it's far from a given that they would even do so given the state's penchant for rejecting the sharpest sort of partisan politics common just about everywhere else. After 2010, the Democratic-dominated state government passed new maps with wide GOP support, so something similar could happen in after 2020 in the likely event Scott wins re-election.

VIRGINIA

  • Governor: Democratic (up in 2021)
  • State Senate: Democratic (21 D, 19 R; up in 2023)
  • State House: Democratic (55 D, 45 R; up in 2021)

In a groundbreaking move, the new Democratic majority in Virginia's legislature agreed to hold votes earlier this year on a GOP-backed reform to enact a bipartisan redistricting commission. The amendment was a compromise that passed with widespread Democratic support in the state Senate but almost unanimous Democratic opposition in the state House. While the measure is not without its own flaws, it should help ensure that Virginia districts that are by and large nonpartisan following the 2020 census if it passes. The amendment is likely to pass, but not without a fight by some Democratic-aligned groups.

These ballot measures will shape voting rights for years to come

One common refrain this year amid Trump's unprecedented assault on free and fair elections is that democracy itself is on the ballot. That's literally the case in many cities and states across the country, with voters set to decide on dozens of ballot measures that will determine who can vote and how elections will work for years to come.

Daily Kos Elections has compiled a spreadsheet that catalogs 24 different measures on a variety of topics related to elections, some placed on the ballot by voters and some by state lawmakers. Below we'll explore some of the most important measures and whether they could have a positive or negative impact on fair elections going forward. 2020 was poised to be another big year for initiatives to expand voting rights and fight largely Republican gerrymandering after reformers successfully passed measures to overcome hostile GOP legislatures in Michigan and elsewhere in 2018. However, after the pandemic hit, courts around the country issued rulings hostile to direct democracy by making it nearly impossible to collect the signatures needed to get measures onto the ballot. Nevertheless, a number states are still poised to vote on key issues affecting the workings of democracy this year.

Gerrymandering and Redistricting Reform

Missouri, New Jersey, and Virginia are all voting on measures that affect redistricting. In Missouri, Republicans placed a misleading amendment on the ballot that would effectively gut a reform that voters overwhelmingly passed in 2018 to make legislative redistricting fairer, trying to trick voters into repealing the reform by attaching token ethics reforms.

In New Jersey, Democrats have put an amendment on the ballot to delay legislative redistricting until the 2023 elections if the release of census data is delayed. The move is intended to protect incumbents from having to run in new districts for an extra two years to the detriment of New Jersey's growing Asian and Latino populations, whose rightful share of representation would be delayed if the amendment passes.

In an extremely unusual move in Virginia, the state's Democratic legislature allowed an amendment to pass with GOP support that would see Democrats surrender their own power to gerrymander and instead create a bipartisan commission appointed half by legislators from both parties and the other half chosen by retired judges. This reform was a compromise with Republican legislators and includes some flaws, but on the whole it should lead to relatively nonpartisan districts for Congress and the state legislature after 2020 if it becomes law.

Electoral System Reform

Efforts to replace the existing electoral system with something that more faithfully implements voters' preferences are on the ballot in several jurisdictions. These measures take aim at the existing system of plurality-winner elections that can see a third candidate play "spoiler" and cost the runner-up a victory. They all aim to ensure majority rule, but not all may end up having a positive effect.

In Alaska and Massachusetts, voters could adopt variants of instant-runoff voting (also known as ranked-choice voting) in congressional and state elections. This system, which Maine adopted in 2016 and expanded in 2019, lets voters rank their preferences and sequentially eliminates the last-place finisher by reassigning their votes to each voter's subsequent preference until one candidate attains a majority. Such systems cut down on the spoiler problem and help to protect majority rule. Alaska's measure would use a variant where the top four finishers in an all-party primary would advance to an instant-runoff general election. (It would use a regular instant-runoff for the presidency.)

A more novel reform to plurality-winner elections is going before voters in St. Louis, Missouri. This approach would adopt a variation of so-called "approval voting," letting voters cast up to one vote for each candidate and having whichever two candidates receive the most votes in the first round advance to the general election. This system aims to avoid some of the complications of instant-runoff voting but is largely untested in real elections, unlike instant-runoff voting, which has a long history both domestically at the local level and abroad.

A Florida initiative that would implement a top two "primary" for state-level elections could have disastrous effects for partisan fairness and Black and Latino representation. This system is in use in California and Washington and has seen major parties get shut out of winnable general elections solely because their vote was split between too many candidates in the primary. It could also make it much harder for Black voters especially to elect their chosen candidates and is facing a lawsuit that could invalidate it for that reason.

Finally, Mississippi's GOP-led legislature, in the face of a lawsuit, has placed an amendment on the ballot to repeal part of its 1890 Jim Crow constitution that created an Electoral College-esque system for determining the winner in elections for governor and other statewide executive offices. This system has been further strained by GOP gerrymandering, such that it would be impossible for Democrats and the Black voters who support them to ever win statewide. This reform would require majority support to avoid a runoff, a method that is not ideal but is nevertheless fairer than the status quo.

Restrictions on the Ballot Initiative Process

Republicans across the country have gerrymandered their maps and passed widespread restrictions on voting, leaving direct democracy as a critical tool for fighting back against these efforts to entrench GOP minority rule. Republicans have responded by trying to restrict the initiative process to preserve their power and have advanced measures in Arkansas, Florida, and North Dakota that would make it harder for reformers to place new measures of their own on the ballot in the future.

Bans on Noncitizen Voting

Republicans in Alabama, Colorado, and Florida are supporting amendments that would rewrite their constitutions to emphasize that only citizens may vote. While these measures would have no effect on the status quo, they would prevent local governments from experimenting with letting legal permanent residents who lack citizenship still vote in local elections, something a handful of small localities in the U.S. and many European democracies already allow.

Efforts to Lower the Voting Age

Lowering the voting age to 16 is an idea that has quietly grown in popularity in recent years. A handful of small localities already allow the practice in local elections, and a majority of the House Democratic caucus voted in favor of doing so federally last year. A number of foreign democracies such as Austria and Brazil already allow 16-year-olds to vote, and San Francisco could become the first major city in America to lower the voting age to 16 in local elections. Just to the east, the city of Oakland could lower the voting age for school board elections, and all of California could join a growing number of states letting 17-year-olds vote in primaries if they'll turn 18 by the general election.

Other Measures

Puerto Rico will once again vote on whether to become a state, and while the measure is not legally binding, it could spur Congress to act on passing an admission bill if Democrats retake the Senate and eliminate the filibuster. Statehood would mean that more than 3 million American citizens would gain representation in the House and Senate. It would also modestly mitigate the upper chamber's bias against voters of color and potentially lessen its partisan bias toward the GOP, too.

The National Popular Vote Interstate Compact, which would assign a state's votes in the Electoral College to the national popular vote winner if states with a majority of electoral votes sign on, has gained steam since Trump's election in 2016 and saw Colorado become the first swing state to join in 2019. However, Colorado Republicans have fought back by putting an initiative on the ballot to repeal the law joining the compact. The outcome of the vote could encourage Democrats in other swing states to follow Colorado's lead, or deter them.

While nearly every state constitution protects the right to vote in some form, Nevada could go even further by enshrining the right to vote in its constitution using modernized language to protect certain methods of voting access. California, meanwhile, could expand voting rights to tens of thousands of citizens on parole for a felony conviction, joining 18 other states that don't disenfranchise anyone not in prison.

Finally, Oregon is one of the last states that allows individuals to donate unlimited sums of money directly to candidates in state elections, but that may soon change. A state Supreme Court ruling earlier this year overturned a precedent that had barred limits on campaign contributions, and now Democrats have placed an amendment on the ballot to codify lawmakers' ability to regulate campaign donations and ensure that the existence of such limits and disclosure requirements isn't dependent upon the ever-changing composition of the courts.

Below you can find a table summarizing all 24 ballot measures we're tracking, and you can find a spreadsheet version of it here.

JURISDICTIONTITLESUBJECTIMPACT ON FAIR ELECTIONSDESCRIPTION
AlabamaAmendment 1Noncitizen votingNegativeBans noncitizens from voting in local elections by requiring citizenship for voting
AlaskaMeasure 2Electoral system reformPositive or NeutralAdopts a top-four primary with instant-runoff general election; adds campaign finance disclosure requirements
ArkansasIssue 3Ballot initiative processNegativeTightens geographic distribution restrictions for ballot initiative signature requirements in order to make liberal-supported initiatives harder
ArkansasIssue 2Term limitsNeutralLoosens lifetime term limits for legislators
CaliforniaProposition 18Voting agePositiveLets 17-year-olds vote in primaries if they turn 18 by the general election
CaliforniaProposition 17Felony disenfranchisementPositiveEliminates disenfranchisement of voters on parole for a felony conviction
ColoradoAmendment 76Noncitizen votingNegativeBans noncitizens from voting in local elections by requiring citizenship for voting
ColoradoProposition 113Electoral CollegeNegativeReferendum to repeal law joining the National Popular Vote Interstate Compact for the Electoral College
FloridaAmendment 4Ballot initiative processNegativeRequires ballot initiatives to win (at least 60%) voter support in two consecutive general elections instead of one
FloridaAmendment 3Electoral system reformNegativeAdopts a top-two primary (aka two-round system) in state-level races
FloridaAmendment 1Noncitizen votingNegativeBans noncitizens from voting in local elections by requiring citizenship for voting
IowaConstitutional ConventionConstitutional conventionNeutralDecides whether to call a state constitutional convention
MassachusettsQuestion 2Electoral system reformPositiveAdopts instant-runoff voting (aka ranked-choice) in congressional, state, and countywide elections
MississippiMeasure 2Electoral system reformPositiveRepeals Jim Crow-era "electoral college" law in statewide elections and replaces it with provision for a separate runoff election if no candidate wins a majority
MissouriAmendment 3Legislative redistrictingNegativeEffectively repeals a voter-approved 2018 ballot measure that made legislative redistricting treat both parties more fairly
MissouriAmendment 1Term limitsNeutralSets a two-term limit for statewide executive offices below the governorship, which is already subject to that limit
NevadaQuestion 4Right to votePositiveGuarantees the right to vote via certain methods
New JerseyQuestion 3Legislative redistrictingNegativePostpones 2021 legislative redistricting until the 2023 election cycle if census data release is delayed to after Feb. 15, 2021
North DakotaMeasure 2Ballot initiative processNegativeRequires a ballot initiative to win voter support in two consecutive general elections instead of one if the legislature doesn't approve it
OregonMeasure 107Campaign financePositiveAllows the legislature to set campaign donation limits and disclosure requirements in state and local elections
VirginiaRedistricting Commission AmendmentRedistricting reformPositiveCreates a bipartisan commission to draw congressional and legislative districts
Oakland, CAMeasure QQVoting agePositiveLowers the voting age to 16 in school board election
San Francisco, CAProposition GVoting agePositiveLowers the voting age to 16 in local elections
St. Louis, MOProposition DElectoral system reformPositiveAdopts approval voting primary where the top-two finishers advance to the general election for local elections

Reformers submit signatures to put a measure to end gerrymandering on Arkansas' ballot this fall

Backers of putting an initiative on Arkansas' November ballot to create an independent redistricting commission have announced that they have filed 50,000 more signatures following a 30-day deadline extension by Arkansas' Supreme Court while it reviews supporters' appeal of GOP Secretary of State John Thurston's decision to reject all of their signatures as supposedly invalid. Thurston contends that signature-gatherers for this initiative and a separate one to adopt a form of instant-runoff voting had not "passed" background checks, even though the groups certified that they had "acquired" them.

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