Friday April 30, 2021
A bill granting statehood to D.C. passed the House on a party-line vote for the second time ever just over a week ago, and 46 Democratic senators had either cosponsored the latest version of the bill or supported the previous iteration (the remaining three beside Manchin haven’t taken a position). With Republicans adamantly opposed to giving District residents representation in Congress, passage in the Senate would have required the four holdouts, including Manchin, to come on board.
Passage also would have required Democrats to adjust Senate rules in order to curtail an inevitable GOP filibuster, but Manchin didn’t cite that hurdle in his remarks to West Virginia MetroNews reporter Hoppy Kercheval. Instead, he said that D.C. should only be granted statehood via an amendment to the Constitution, claiming that “[e]very single legal scholar has told us” that any attempt to do so through ordinary legislation would “go to the Supreme Court.”
However, “every single” legal scholar has very much not told us that, with many of them arguing that D.C. statehood is constitutional given that the Constitution only mandates a maximum size for the federal district, not a minimum one or even where it must be located. The Democratic-backed bill would simply shrink the existing District down to key federal buildings around the White House and Congress while admitting the residential parts of D.C. as a new state. Congress already altered the size of the District once before by statute when it returned the Virginia portion of the original District to that state in 1846.
Manchin did not appear to say what he thought the outcome of such litigation might be, but rather than risk an adverse ruling, he said, “So why not do it the right way and let the people vote, to see if they want to change?” It’s not clear what sort of vote Manchin might have in mind, however, as proposed constitutional amendments are subject to neither national or state referendums, and D.C. residents already voted 86-14 to support statehood in a 2016 non-binding referendum. Constitutional amendments must instead be approved by two-thirds majorities in both the House and Senate and then ratified by the legislatures in three-quarters of the states, leaving no opportunity for citizens to vote on them.
In the same interview, Manchin called H.R. 1, also known as the For the People Act, “a far reaching 800-page bill that I do not support in its totality.” Manchin previously issued a statement expressing his support for specific provisions of the bill, but he has not elaborated on which measures he finds objectionable. (Among other things, the legislation would prohibit partisan gerrymandering at the congressional level and establish major new protections for voting access such as both automatic voter registration and same-day voter registration.)
If the bill were amended to his liking, however, Manchin hinted that he might support it, telling Kercheval, “As it exists today I would not be able to support that bill and I would vote ‘no.’ I hope it doesn’t come to that.” Democratic leaders, however, have insisted that they want the bill to remain intact, though Senate Majority Leader Chuck Schumer has also said that “everything is on the table” to secure the bill’s passage. Schumer recently said that he believes the deadline for Democrats to act is “by August or so,” so presumably we’ll learn of any new developments that might appease Manchin in the next few months.
With a difficult election likely looming next year thanks to the long-established tendency of the president’s party to lose seats in midterms, Democrats have only a limited window to end gerrymandering and address the Senate’s extreme malapportionment by making D.C. a state, not to mention granting suffrage to the predominantly Black residents of the District and protecting voting rights nationally. If they fail to act now, Republicans could once more retake Congress next year despite Democrats winning more votes as has happened repeatedly in the Senate since 2000, and it may be too late to safeguard our democracy the next time Democrats get the chance—if they ever do.
● 2020 Reapportionment: On Monday, the Census Bureau released long-awaited data from the 2020 census showing which states will gain seats in the House for the coming decade and which will see their congressional delegations shrink. In all, 13 states will feel the impact of population changes over the past 10 years, with six adding seats and seven losing representatives. These shifts are all reflected in this map, but they contain several surprises compared to projections based on recent growth trends.
In a continuation of long-standing patterns, most of the increases in representation will be concentrated in Sun Belt states, with Texas once again leading the way in gaining two seats. However, while Florida looked likely to grow by two seats, it will only add one, and Arizona, which forecasts showed tacking on another seat, won’t pick up any.
Conversely, losses will largely show up in states in the Midwest and Northeast, though New York avoided shedding two seats and came just 89 people away from standing pat. California, meanwhile, will experience its first decline in seats in state history. Montana, which lost a seat after the 1990 census, will once more send two members to Washington, D.C., though Rhode Island, which appeared to be on track to end up with just a single at-large district, will hang on to both of its seats.
The unexpectedly small gains in Sun Belt states are one indication that there may have been a significant undercount of the growing Latino populations in those states, as some have already begun to argue. However, we’ll have to wait until the census releases its most granular data later this year to have a better idea of what the population changes look like within states instead of across them.
Furthermore, the biggest impacts of the census won’t be known until congressional redistricting is complete, a process that, thanks to delays in the production of necessary data, won’t begin until August at the earliest and will likely last through a good part of next year.
We do know, however, that Republicans will once again dominate the redistricting process, just as they did following the 2010 census: As shown on this map, GOP lawmakers in the states will be able to draw new maps for anywhere from 38% to 46% of all districts while Democrats will control the process for just 16% of seats (the remainder will likely be drawn by nonpartisan entities or through bipartisan compromise). The Voting Rights Roundup will continue to stay on top of the mapmaking process as it unfolds, and you can subscribe to it for free here.
● Louisiana, Minnesota, Pennsylvania: National Democrats filed some of the earliest lawsuits of the 2020s redistricting cycle this week, asking state courts in Louisiana, Minnesota, and Pennsylvania to take over the redistricting process on the grounds that divided government in each of those states precludes the two parties compromising to pass new maps legislatively. At stake is congressional redistricting in all three states and legislative redistricting in all but Pennsylvania, where the 5-2 Democratic Supreme Court will soon appoint the tiebreaker to the bipartisan redistricting commission that handles legislative remapping and possibly hand control to Democrats.
Democrats hold the governorship in all three states while Republicans hold the legislative chambers in all of them aside from Minnesota’s lower house; Democrats also control the state supreme courts in Minnesota and Pennsylvania while conservatives hold Louisiana’s Supreme Court. With Republicans being just two seats shy of having a veto-proof majority in Louisiana’s state House, there is a serious risk that Republicans could entice the chamber’s two independents or a couple of Democrats to override a likely veto by Democratic Gov. John Bel Edwards to pass new gerrymanders in exchange for giving those legislators favorable districts if a court doesn’t intervene.
Democrats are likely filing these lawsuits before legislators in all three states even have a chance to draw new maps in order to get state courts to take over the process instead of federal ones if lawmakers do indeed deadlock, since the Democratic-majority courts in Pennsylvania especially and possibly Minnesota are likely to be more favorable to Democrats than the conservative-dominated federal courts would be. Pennsylvania’s court previously struck down the GOP’s congressional gerrymander in 2018 and replaced it with a much fairer map when the parties deadlocked on a replacement, and the court would likely draw similar districts if given the chance for 2022.
However, it’s far from clear that the state courts will look favorably upon these lawsuits before legislators even get a chance to pass new districts, since courts across the country have long been highly deferential to giving legislatures another “bite at the apple” in redistricting lawsuits even when maps get struck down.
● Montana: 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 on Monday 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.
● Ohio: With the delayed release of key census data until August threatening the ability of Ohio officials to pass new maps ahead of deadlines imposed by state law, Republican legislators are considering whether to hold a vote next week to put a constitutional amendment on the ballot on Aug. 3 that would alter those deadlines for the coming redistricting cycle. Under current law, Ohio’s Republican-controlled redistricting commissions face deadlines in September for proposing new congressional and legislative maps, giving them little time to devise the maps and hold public hearings.
Thanks to their existing legislative gerrymanders, Republicans hold the three-fifths supermajorities needed to put constitutional amendments on the ballot without any Democratic support, but Republican state Senate President Matt Huffman expressed his reluctance over attempting to pass the proposal without Democratic backing. He may not get any, though, as Democrats have expressed a preference for petitioning Ohio’s Supreme Court to extend the deadline as lawmakers have done in some other states.
VOTING ACCESS EXPANSIONS
● California: State Senate Democrats have passed a bill in a second committee that is intended to strengthen California’s automatic voter registration law by changing the way in which prospective voters are given the chance to opt out of registration. Currently, eligible voters who do business with California’s Department of Motor Vehicles are automatically registered unless they choose to opt out at the time of the transaction, known as a “front-end” system. This latest bill would instead shift that opt-out chance to a subsequent mailed notification, a “back-end” system that proponents hope will encourage more new voters to remain opted in.
● Colorado: Democrats have introduced a bill to automatically update voters’ registration data when they update relevant records with Colorado’s Medicaid or state health agencies. The measure would furthermore require colleges to give students information on how to register at the beginning of each fall semester and at the end of the spring semester.
Additionally, the bill adds limits on mail ballot drop boxes being placed at police stations rather than other locations, which some voters may find intimidating in a state where universal vote-by-mail has led to widespread use of drop boxes. Drop boxes would also be required to stay open for people waiting in line on election night at the close of the polls just like in-person polling places are.
Democrats are also eyeing restrictions on recall elections after Republicans used them over the past decade to target incumbents—who hadn’t been accused of any wrongdoing—so that they could try to unseat them in low-turnout races since they otherwise likely couldn’t win in regular, high-turnout elections. The bill would require recall petition signature-gatherers to wear a badge saying whether they’re a volunteer or are paid, and petitions would be required to have a cost estimate for the recall elections. The bill also strengthens a prohibition against false statements on recall petitions.
Meanwhile, Democrats have passed a separate bill in a state House committee that would allow online voting for people with certain disabilities, following on the bill’s recent approval by state Senate Democrats. While this measure is intended to preserve the privacy and independence of voters who have a hard time voting using traditional methods, election security experts have widely warned that internet-based voting is inherently insecure under current technology.
● Hawaii: Hawaii’s Democratic-run legislature finally overcame long-standing hurdles to almost unanimously pass a bill to adopt automatic voter registration through the state’s driver’s licensing agency. The measure now goes to Democratic Gov. David Ige for his likely signature.
The bill’s passage follows repeated failures by the two chambers to agree on a single version after each advanced slightly different versions. Once signed into law, Hawaii would become just the fifth state to adopt both automatic registration and universal mail voting, two major policies that have helped the other four states—California, Colorado, Oregon, and Washington—achieve some of the highest turnout rates in the country.
Separately, lawmakers unanimously voted to send Ige another bill that expands in-person voting centers. Last year, Hawaii began its transition to mail voting, which helped the state break records for turnout with an increase greater than that of any other state. However, the lack of adequate in-person polling options for those voters who preferred not to vote by mail or couldn’t easily do so sparked long voting lines last November, something this bill intends to prevent in the future. The bill also requires that officials give voting information to citizens on parole or probation, who automatically regain their voting rights upon release from prison.
● Oklahoma: Oklahoma’s Republican-run state Senate has passed a bill with almost unanimous support to extend the state’s early voting period from three days to four; the current three-day timeframe is the shortest of any state that offers early voting. The GOP-run state House previously passed the measure in March, but the two chambers will have to agree on a single version of the bill after the Senate made changes.
● Arizona: Republican legislators have passed a bill that would impose an Election Day deadline for voters to “cure” a missing signature on their absentee ballot to ensure it counts, making it less likely that voters will have sufficient time to add a missing signature once they’re notified of the problem. Voters who do provide a signature but see it get rejected by officials for supposedly not matching the one on file would still have a week after Election Day to remedy the problem.
The GOP’s proposal stands in contrast to a federal lower court ruling last year that would have allowed a week after Election Day for curing missing signatures before it was blocked on appeal, which Democrats at the time declined to appeal further with Election Day quickly approaching. Citing that ruling, Democrats are likely to challenge this latest measure in court if Republican Gov. Doug Ducey signs it as expected.
● Arkansas: Following in the footsteps of their counterparts in other states, Arkansas Republicans have passed a new law that would give them greater control over election administration by granting partisan county election board members more power over local election officials. This law is part of a broader movement by Republicans in multiple states, including Georgia, which could give them greater ability to overturn future election results after Trump’s failed effort to do so in 2020.
Republican Gov. Asa Hutchinson also let a bill become law without his signature that would require voters to return their absentee ballots to election officials by the Friday before Election Day instead of by Election Day itself. This requirement would be unparalleled, since all but one state gives voters at least until Election Day to return their ballots, with many allowing ballots that are received a few days after Election Day to count so long as they are postmarked by Election Day. The only exception is Louisiana, where absentee ballots must be received the day before Election Day.
Meanwhile, Republicans in the state House failed to pass a bill that would eliminate the final Monday of early voting after lawmakers recently advanced it out of committee, making it doubtful that Republicans will be able to hold another vote on the bill with the end of the legislative session approaching. If approved, the measure would eliminate one of the most popular early voting days, which was used by 51,000 voters last November, and set the last early voting day as the Saturday before Election Day.
● Florida: Republican legislators have passed a bill over Democratic opposition that would impose several new voting restrictions targeting mail voting in particular, making Florida the latest of many states where Republicans are poised to enact new measures making it harder to vote in response to the GOP’s 2020 election losses. Republican Gov. Ron DeSantis is expected to soon sign the bill, and once he does so, Democrats have vowed to sue to block the measure.
The GOP’s bill would restrict absentee ballot drop boxes to only being available at early voting sites during early voting hours instead of 24/7 availability and require that they be staffed by election office employees. That change could further limit their availability and exacerbate early voting lines by funnelling more absentee voters into crowding into early voting locations at the same time as people trying to vote in-person. The bill would also restrict who may turn in someone else’s mail ballot on their behalf with only limited exceptions such as for family members but not trusted friends or neighbors, which could make it harder for people to vote in areas that lack reliable postal service and sufficient access to transportation.
The bill also eliminates a policy initially passed by Republican lawmakers that allows voters to make a single request to receive an absentee ballot for all elections that take place in the next two federal election cycles. Instead, voters will now have to make a new request each election cycle, though requests from 2020 for the coming 2022 cycle wouldn’t be retroactively cancelled as they would have under the original version of the legislation.
Additionally, the bill includes provisions that would effectively make it illegal for volunteers to give food or water to voters waiting in line to vote, which combined with the provisions making it harder to vote by mail and directing more voter traffic to early voting locations could increase the odds that some voters in hours-long lines simply give up on voting entirely. Georgia Republicans sparked a national backlash after passing a similar provision in their sweeping voting restriction bill in March.
Lastly, Florida Republicans inserted another power-grabbing provision in the bill at the last minute that would give Republican Ron DeSantis the ability to appoint Republican replacements when local elected offices such as county commission seats become vacant. This measure is a particularly impactful change because Florida for decades has required that lower level officials resign their seats whenever they run for higher office and be replaced in special elections rather than via appointment, meaning Democrats in those positions even in heavily blue constituencies who want to seek a promotion would risk automatically forfeiting their existing position to a GOP appointee until at least the next election.
It’s the norm among other states for voters or county officials themselves to fill such vacancies rather than for the state government to have the sweeping ability to handpick replacements that could create changes in party whenever local vacancies arise. While a future Democratic governor could theoretically take advantage of this change to replace Republican local officials whose seats become vacant, Republican lawmakers could simply change the law again in the future given that they’re positioned to gerrymander the legislature to entrench their majorities.
● Georgia: Black and Latino voter advocates have filed what is the sixth federal lawsuit against the far-reaching voting restriction bill that Georgia Republicans passed in March. The lawsuit argues that several provisions of the law illegally discriminate against voters of color, such as restrictions on absentee ballot drop boxes, shorter absentee ballot deadlines, reduced early voting in the shorter general election runoff period, stricter voter ID requirements, the ban on mobile early voting locations, and the ban on giving food or drink to voters in line to vote. You can find details on the other five lawsuits here.
● Kansas: Democratic Gov. Laura Kelly has vetoed two bills passed by Republican legislators that would strip state judges and executive branch officials like Kelly of some of their powers over election procedures.
Responding to actions by Democratic executive officials in other states during the pandemic last year to improve voting access by extending key deadlines, altering election procedures, and agreeing to legal settlements, one of the Kansas GOP’s bills would prevent the judicial and executive branches of state government from altering election laws or entering into legal agreements known as “consent decrees” without legislative approval. The bill additionally imposes disclosure requirements for groups sending information about mail voting to voters.
Another Republican-backed bill would restrict who may collect and submit a completed absentee ballot on behalf of another voter, including making it a felony for anyone to return more than five ballots. That bill also bans candidates from assisting voters to cast their ballots; bans the secretary of state (currently Republican Scott Schwab) from extending deadlines for absentee voting; and requires absentee ballot signatures to match the one officials have on file.
However, Republicans lacked a veto-proof two-thirds majority when passing the bills in the state House thanks to a few GOP opponents, so it’s unclear whether they’ll be able to override both of Kelly’s vetoes.
● Texas: With no warning or public debate, state House Republicans have gutted one voting restriction bill previously passed by their Senate counterparts and substituted in provisions of a separate bill that the House had advanced in a committee earlier in April. Swiftly after swapping in the different language, House Republicans passed their revised bill in a committee along party lines.
The House GOP’s bill would make it a felony for election officials to send unsolicited absentee ballot applications to voters. Last year, Democratic officials in multiple urban counties did so due to the pandemic, or tried to before Republican officials blocked them from doing so. The bill would also require those who provide assistance to voters to help them to cast their ballots to disclose the reason why the voter needed help, which voting advocates argue could be intimidating.
One of the most concerning parts of the bill would grant party-appointed “poll watchers” wide freedom to move about polling sites as well as the power to record video of any voters they “suspect” of unlawful activity, enabling white poll watchers to harass voters of color. Poll workers and voters, however, would be restricted from recording the supposed poll watchers.
While the different bills supported respectively by the two chambers contain similarities, the Senate version that House Republicans gutted would have also imposed cutbacks on early voting hours and banned drive-thru voting along with other provisions not contained in the House legislation.
Separately, Senate Republicans have passed a separate bill that would ban the use of post office boxes for voter registration, which Democrats have argued could disenfranchise historically disadvantaged groups such as Native Americans or Latinos, who are more likely to live in rural areas that lack residential street addresses.
● U.S. Territories: A federal district court in Hawaii has dismissed a lawsuit on the grounds that it lacks jurisdiction in a case where the plaintiffs were challenging a federal law that prohibits them from voting for president and Congress solely because they moved from the states to American Samoa, Guam, Puerto Rico, or the U.S. Virgin Islands. The plaintiffs note that U.S. citizens originating from the 50 states retain the right to vote for federal offices in their former state if they live in a foreign country or the Northern Mariana Islands but not in the other four territories. They have argued that the system is unconstitutional by privileging citizens who move to one territory above the other four.
The plaintiffs have not yet indicated whether they will appeal, but the Supreme Court in 2018 refused to take up an appeal of a 7th Circuit Court of Appeals ruling in a similar case.
● Arkansas: Republican legislators have voted to put a constitutional amendment on the ballot in November 2022 that aims to stifle progressive ballot initiatives by raising the threshold of voter support needed for such measures to pass from the current simple majority to 60%. Last year, voters rejected another Republican-backed amendment that attempted to undermine progressive initiatives—but not conservative ones—by imposing a stricter geography requirement for petition signatures that would have disproportionately burdened Democrats and Black voters.
The GOP’s efforts to limit initiatives come after voters used one to raise the minimum wage in 2018 and amid ongoing efforts by voting advocates to put initiatives on the ballot to reform redistricting and the state’s electoral system. They also add Arkansas to the growing number of states where Republicans have responded to progressive ballot initiatives by trying to make such measures harder if not impossible in the future. However, reformers still have the 2022 cycle to try to pass initiatives with the current simple majority threshold.
ELECTORAL SYSTEM REFORM
● Colorado: State House Democrats have passed a bill along party lines 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 election administration hurdles to help facilitate the transition.