Gerrymandering & vote negation

[Intrinsic]

Voting Rights Roundup: Judge tosses GOP's deceptive summary of measure to gut redistricting reform

LEADING OFF

● Missouri: A state court has thrown out the GOP's ballot summary for a constitutional amendment that Republicans placed on November's ballot to gut a reform voters enacted in 2018 to make legislative redistricting fairer, ruling that the GOP's language was deceptive and calling it "the exact evil the summary statement is meant to combat, not promote." The court rewrote the summary to more accurately convey that the measure would repeal a key part of the 2018 reform proposal, leading the GOP to promptly file an appeal.

The GOP had described its amendment as creating an independent commission to draw districts, ban lobbyist gifts, and reduce legislative campaign contribution limits. However, Republicans were deceptively using a tactic that they had accused reformers of using in 2018: adding small ethics reforms to paper over their major changes to redistricting. The GOP's amendment would simply lower contribution limits by just 4% and reduce the limit on gifts from registered lobbyists to legislators from $5 to $0 after the 2018 measure set a $5 limit on what had previously been an unlimited gift allowance.

​Far more consequential to the GOP's amendment are the changes that would gut the 2018 measure's redistricting reform components. Rather than create any new commission, the GOP's amendment would eliminate the position of nonpartisan demographer and instead return sole control over redistricting to the state's gridlock-prone bipartisan commissions appointed by political officeholders. It would also loosen the requirement for partisan fairness to the point that it would effectively become toothless.

VOTER SUPPRESSION

● U.S. Postal Service: Donald Trump's attempt to sabotage voting access to prevent fair elections this fall hit a new low this month when Trump gave away his game by  he was blocking billions in USPS funding to prevent voting by mail, a method that has skyrocketed in importance as a way to safely cast a ballot during the coronavirus pandemic.

Trump vowed to block any pandemic relief spending bill that includes the $25 billion in emergency funding for the USPS or the $3.5 billion in election funding for the states that were provisions in legislation House Democrats passed in May. Senate Republicans, meanwhile, adjourned until mid-September without passing a bill to extend important pandemic relief measures that expired this month, and it appears doubtful that congressional Republicans will pass any new pandemic relief bill before Election Day.

Trump's threats and widespread reports of delays in mail delivery times since his appointees to the USPS Board of Governors installed major GOP donor Louis DeJoy as postmaster general in June have led to increasing alarm among voting rights advocates that the administration could prevent millions of ballots from being received in time to count. Trump is likely planning to reject an election loss by falsely claiming mail-in votes are rife with fraud, particularly since later-counted votes will likely favor Joe Biden because Democrats are now much more apt to vote by mail.

Consequently, Democratic state officials and voting advocates have filed several lawsuits in federal court over Trump's apparent sabotage of USPS operations. However, success will be difficult, especially given the track record of federal courts, which are now dominated by Republican appointees, ruling against voting access during the pandemic.

Meanwhile, after numerous congressional Democrats called for the House to subpoena DeJoy and arrest him if he refused to comply, the postmaster general agreed to testify before the GOP-led Senate on Friday and will appear before the Democratic-led House on Monday. We'll have more coverage of DeJoy's testimony and the reported problems with mail delivery in the next edition of the Voting Rights Roundup.

● Alabama: Voting rights advocates who are challenging the Alabama GOP's voter ID law as discriminatory will request an "en banc" hearing with all judges on the 11th Circuit Court of Appeals participating. The request follows a recent ruling by a panel of three judges on the circuit that upheld the law. That ruling fell along ideological lines, with the two Republican appointees voting to uphold the law while the lone Democratic appointee dissented. However, after a flood of Trump appointments, the 11th Circuit now has a Republican-appointed majority, making it doubtful that this appeal will succeed.

● Indiana: A federal district court has struck down Republicans' law that enabled voter registrations to be purged without notification in violation of federal law, dealing yet another blow to the GOP's attempt to use faulty data matching to purge voters without ever informing them.

Republicans had passed legislation earlier this year that withdrew the state from the now-defunct Interstate Crosscheck system championed by Republicans such as former Kansas Secretary of State Kris Kobach, which multiple federal courts had blocked Indiana from using over its security flaws and inaccuracy.

However, the GOP's replacement law created a new system that was susceptible to the same shoddy design flaws that saw Crosscheck yield more than one hundred false positives for every improper duplicate registration it found, leading to the court blocking its implementation.

Republicans have yet to announce whether they will appeal. If they fail to overturn this ruling, though, they'll have to devise another system for maintaining their voter rolls that does not remove potentially eligible voters without first informing them as required under the 1993 National Voter Registration Act, commonly called the "motor voter" law.

● Minnesota: A state court judge has rejected Republicans' request to reinstate certain limitations on who can assist voters with completing or submitting absentee ballots while the GOP's appeal of the court's ruling that temporarily blocked the restrictions remains pending. The suspended law prohibits a person from helping more than three voters complete or return their absentee ballots, which the Democratic plaintiffs have argued violated both the state constitution and federal law by discriminating against people with disabilities and naturalized citizens in need of translation assistance.

● North Carolina: A panel of three judges on the North Carolina Court of Appeals has unanimously denied Republicans' motion to revoke the court's preliminary injunction blocking the GOP's voter ID requirement for November. The judges rejected Republican arguments that a new voting law passed subsequent to the injunction, which eased voting access during the pandemic but included a provision expanding the types of IDs acceptable under the voter ID requirement, undermined the court's finding that the plaintiffs were likely to prevail on their argument that the new law was discriminatory.

Consequently, the voter ID law will remain suspended for November as the case proceeds on the merits. A separate federal case is also proceeding on the merits after a district court issued its own preliminary injunction early in 2020 to block the ID requirement.

● Texas: A federal court has rejected the GOP's motion to dismiss a pair of Democratic-backed lawsuits challenging a 2019 law Republicans enacted to ban mobile voting locations that operate in a given location for only part of the early voting period. The law in question requires that all polling places be open for the entire early voting period, but because this puts additional burdens on county election officials' resources, many localities have opted not to operate so-called "mobile" polling places altogether.

Democrats argue that the law discriminates against seniors, young voters, voters with disabilities, and those who lack transportation access in violation of the First, 14th, and 26th Amendments.

BALLOT MEASURES

● Arkansas: Republican Secretary of State John Thurston has certified two democracy reform ballot initiatives for November's ballot. However, ongoing litigation before the Arkansas Supreme Court could disqualify both measures, including one to establish an independent redistricting commission and another to create a "top-four" primary with an instant-runoff general election.

The lawsuit stems from Thurston's attempt to reject the petitions collected to put the measures on the ballot as allegedly invalid. He contends that signature-gatherers for both initiatives had not "passed" background checks even though the groups certified that they had "acquired" such checks. If the state Supreme Court disagrees and overrules Thurston, voters will get a chance to weigh in on the two measures on Election Day.

● North Dakota: The North Dakota Supreme Court held arguments this week in a lawsuit Republicans recently filed seeking to block an initiative to amend North Dakota's constitution to reform redistricting and change the state's electoral system, which recently qualified for the ballot. Republicans contend that supporters of the measure misled voters who signed their petition.

If the court rejects the GOP's arguments and keeps the measure on the ballot, voters would get a chance to decide whether to remove the legislature's unfettered control over legislative redistricting and transfer it to the state's bipartisan Ethics Commission, which is chosen unanimously by the governor and majority and minority leaders of the state Senate.

The initiative would also replace traditional primaries with a "top-four" system where the four candidates who win the most votes would advance to the general election regardless of party. From there, instant-runoff voting would be used to determine the winner. Additionally, the measure would require that any voting machines create a paper record of every vote (North Dakota currently uses paper ballots by default and voting machines for voters with disabilities) and that the secretary of state conduct routine audits of elections.

● Oklahoma: Supporters of an initiative to amend Oklahoma's constitution to create an independent redistricting commission have refiled their measure for the 2022 ballot after the inability to gather signatures electronically during the coronavirus pandemic required them to withdraw their effort to get onto this November's ballot. If this new effort obtains roughly 178,000 voter signatures and wins majority support at the ballot two years from now, it would require the state to immediately redraw its congressional and legislative districts for 2024.

BALLOT ACCESS

● West Virginia: A federal district court has struck down a law that gives the party that won the most recent presidential election in West Virginia the top spot on the ballot, which since 2000 has favored Republicans, agreeing with the Democratic plaintiffs that it unfairly advantaged the top-listed party in violation of the First and 14th Amendments. Academic researchers have found that ballot order can aid the candidates listed first, though its effect is generally more pronounced further down the ticket in races where voters have less information about the candidates.

Republicans quickly filed an appeal with the 4th Circuit Court of Appeals, but the district court refused to stay its ruling while that appeal is pending.

2020 CENSUS

● 2020 Census: The Census Bureau has announced that it will stop accepting paper response forms on Oct. 8, requiring that they be postmarked by Sept. 30 and received no later than Oct. 7. This move comes as part of the Trump administration's plan to cut short the census' counting operations by a month. Given the delays with postal delivery service, it risks further exacerbating what is already likely to be a substantial undercount. Additional lawsuits were filed recently in federal court to block Trump from making these cuts to the census, bringing the total number to at least nine.

Meanwhile, lawsuits over Trump's directive last month to exclude undocumented immigrants from census reapportionment data have been sent to a panel of three federal judges, which means any appeal will be immediately fast-tracked directly to the Supreme Court.

COURT CASES

● Maine: U.S. District Judge Lance Walker has rejected a request by Maine Republicans that he block the use of instant-runoff voting entirely. Walker's ruling concluded that IRV does not violate the First Amendment as Republicans had argued, meaning it will remain in effect for all federal contests, including the presidency, this November.

Walker's recent ruling follows his 2018 decision that thoroughly rejected the GOP's contention that IRV violated voters' constitutional rights, as former Republican Rep. Bruce Poliquin had claimed following his loss in the 2018 election to Democratic Rep. Jared Golden after an instant runoff. The 1st Circuit Court of Appeals also turned back Poliquin's appeal in that case, so there's little reason to think Republicans would have any more success this year if they waged an appeal of Walker's latest ruling.

Separately, Republicans are still waging a challenge in state court after Democratic Secretary of State Matt Dunlap determined that Republicans were roughly 2,000 voter signatures shy of the 63,000 signatures needed to put a veto referendum on the ballot in November. Dunlap recently reaffirmed his decision to reject the referendum, but should the courts reverse him and allow the measure to qualify for the November ballot, it would automatically suspend the use of IRV in this year's presidential race pending the vote (it would remain in effect for Senate and House).

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.

● District of Columbia: DCist recently reported that online voter registration will no longer be available in D.C. for this year's elections after the district's Board of Elections quietly deactivated its online registration app due to problems that made it unreliable. The board says it is trying to remedy the problem but says it doubts it will be resolved in time for November.

● Georgia: Federal district court Judge Amy Totenberg has rejected a request to issue a preliminary injunction in a lawsuit seeking to require Georgia to prepay the postage on absentee mail ballots, finding that the plaintiffs were unlikely to succeed on their claim that requiring voters pay the cost of postage violates the 24th Amendment's ban on poll taxes. The case will still proceed on the merits and could ultimately reach a different outcome, but the plaintiffs now have limited time before the November elections.

● Indiana: A federal district court has ruled that Indiana must notify voters and give them a chance to fix problems with their mail ballot signatures instead of rejecting them without notice. Republican officials have not indicated whether they will appeal.

● Iowa: Republicans have filed a trio of lawsuits in state court seeking to stop Democratic officials in three Iowa counties from sending applications for absentee mail ballots to all voters with pre-filled information using the state's voter registration database.

Republican lawmakers recently passed a law to enable the mailing of absentee applications to all voters statewide, but they prohibited pre-filled forms following their passage of a separate law that requires county officials to contact voters for missing information even when they could complete an application on a voter's behalf using the state's database.

Since one piece of information required is a state-issued voter "PIN," something that virtually no voter is likely to know, these laws will require county officials to waste their limited time and resources contacting voters. That will lead to delays that could cause some voters to not get their ballots on time if at all. Republicans are asking the court to throw out any pre-filled applications that have already been submitted by voters, risking additional voter confusion.

A separate lawsuit backed by Democrats and Latino voter advocates is ongoing in state court and seeks to block the law prohibiting county officials from using the state's database to fill in missing information.

● Maine: Democratic officials in Maine have agreed to let visually impaired voters cast an absentee ballot electronically after voters filed a lawsuit in federal court last month to protect their right to vote safely and secretly. The agreement will let such voters receive their ballots electronically and fill them out using special screen-reading software.

● Maryland: Republican Gov. Larry Hogan has reversed course on his order to open all 1,800 polling places as usual this fall and instead approved a unanimous request from the bipartisan state Board of Elections to operate 360 "vote centers" where any voter within a county may cast their ballot. Maryland will also set up at least 270 drop boxes across the state for voters to return their mail ballots without relying on postal delivery.

These changes come after the state experienced an acute shortage of poll workers, as well as Hogan's refusal to sign off on mailing ballots to all voters, as he had before Maryland's June primary. Instead, Hogan agreed to send applications for mail ballots to voters, which will likely lead to lower rates of mail voting.

● North Carolina: North Carolina voters have filed a lawsuit in state court seeking to waive the requirement that absentee mail ballots be witnessed in households with only one adult; require prepaid postage; let counties expand the early voting period; count ballots that are postmarked by Election Day and received up to nine days afterward; require officials to notify voters and give them a chance to fix problems with their mail ballot signature; and let individuals or community groups assist with filling out or delivering a voter's mail ballot.

Most of those demands overlap with those in other lawsuits ongoing at both the federal and state levels in North Carolina.

Meanwhile in a separate lawsuit, a state court has rejected a request to block the use of electronic voting machines based on the possible risk that their use could spread COVID this fall. Election security advocates have been challenging the use of these machines, which print paper ballot records, because they produce a printed barcode that voters cannot read to confirm that their votes were tallied accurately.

● Ohio: Republican Secretary of State Frank LaRose has issued a rule allowing only one drop box per county for the return of mail ballots in November. LaRose contends he lacks the authority to allow more than one location per county, but Democrats disputed that claim and accused him of trying to suppress Democratic votes, since heavily Democratic urban counties such as Franklin (home to Columbus and 1.3 million residents) would only be able to operate the same number as heavily Republican rural counties with a fraction of the population.

Meanwhile, LaRose will ask the state's Controlling Board, a seven-member body consisting largely of GOP legislators that makes adjustments to the state budget, to allocate $3 million to prepay the postage on mail ballots. LaRose had previously agreed to send applications for mail ballots to all voters this fall, as Ohio has done in the last several general elections.

● Oregon: The Supreme Court has stayed a federal district court ruling that had significantly eased signature requirements for a ballot initiative to establish an independent redistricting commission, likely killing the measure for 2020.

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

With the stay in place, the case over the merits goes back to the 9th Circuit Court of Appeals, which had refused to block the district court's order. However, it's unclear whether there will be a ruling in time to place the measure on November's ballot. But even if reformers prevail at the 9th Circuit again, there's no guarantee that the Supreme Court won't simply step in again to block the ruling. In fact, the high court's conservative majority has blocked almost every lower court ruling since the start of the pandemic that has either eased voting or ballot access.

● Pennsylvania: Philadelphia and several other Democratic-leaning counties in southeastern Pennsylvania are exploring the possibility of setting up a number of what would effectively be early voting locations, given the widely reported delays in mail delivery in recent months. Currently, voters can only vote early in-person by casting a mail ballot at their county's election's office, but officials are planning to create satellite election offices, including some mobile offices that could shift location depending on demand.

● Texas: Republican state House nominee Bryan Slaton and several GOP voters have filed a lawsuit in state court seeking to reverse Republican Gov. Greg Abbott's executive order extending the early voting period by one week, claiming Abbott lacks the authority to order such an extension without legislative approval.

● Utah: Utah's heavily Republican legislature has unanimously passed a bill that temporarily expands voting options for November's elections due to the pandemic. State officials are already mailing every voter a ballot by default, but this bill would add options for voting by letting counties establish drive-through voting and drop boxes for voters to return their mail ballots in-person.

● Virginia: As lawmakers return for a special legislative session, Democratic Gov. Ralph Northam has proposed provisions in a state budget measure that would have Virginia prepay the cost of postage on mail ballots, establish drop boxes for in-person return of mail ballots, and give voters a chance to fix errors on their mail ballots to ensure they're counted.

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