Programming Note: The Voting Rights Roundup will be on hiatus the week of Nov. 28 and will return the following week.
● Alaska: Alaska voters have passed Measure 2 by a 50.6-49.4 margin, making their state the first to adopt a novel “top-four” primary. This system will require all the candidates for congressional, legislative, and statewide races to face off on one primary ballot, where contenders will have the option to identify themselves with a party label or be listed as “undeclared” or “nonpartisan.”
The top four vote-getters regardless of party will advance to the general election, where voters will be able to rank their choices using instant-runoff voting. Measure 2 will also institute instant runoffs in presidential elections, though traditional party primaries will remain in effect for those races. The law further sets up new financial disclosure requirements for state-level candidates.
This system bears some resemblance to the “top-two” primary used in California and Washington, a system we have frequently criticized for its propensity to yield undemocratic outcomes. However, the risk of one party getting shut out of a winnable general election is much lower with four candidates advancing rather than with just two, though it’s still not zero—and would rise if there’s viable third-party competition.
The adoption of instant-runoff voting, however, could have an even more profound impact, given Alaska’s electoral history: Nine of the state’s 16 elections for governor since statehood in 1959 have seen a candidate prevail with only a simple plurality, as have five of its last six U.S. Senate elections. Instant runoffs would dramatically reduce the possibility that a candidate wins solely because of third candidates playing “spoiler.”
● Louisiana: High-ranking Republican Rep. Steve Scalise is urging Louisiana’s legislature to replace the state’s unique method of conducting federal elections with traditional primaries prior to the November general election that would be limited to registered party members.
Louisiana has for years relied on all-party primaries, in which all candidates regardless of party affiliation run in a single primary election that coincides with the November general election. If a candidate wins a majority of votes, they’re elected outright, but if no one clears that hurdle, the top two finishers regardless of party advance to an early December runoff.
There are two key problems with this system, though, the most important of which is that a party can get shut out of a winnable runoff if it has too many candidates splitting the vote in the first round. That’s proven to be a recurring risk in California and Washington, which take a similar approach and have repeatedly seen Democrats get locked out of general elections they could otherwise win.
The second issue is that December runoffs almost always see much lower turnout, which may not be as representative of the overall electorate as it is in November. And with just a month between the primary and runoff, challengers have little time to replenish their resources and shift their focus toward incumbents, who in the House get a full two-year federal cycle to campaign in general election mode.
(Though not apparently under consideration, instant-runoff voting would alleviate these problems. Louisiana in fact already uses IRV for overseas voters, since there isn’t enough time to send them a runoff ballot.)
All-party primaries have, however, sometimes allowed more pragmatic Republican candidates to win all-GOP runoffs by appealing to Democratic voters, as former Rep. Vance McAllister did in a 2013 special election. This may be one reason why Scalise, who once reportedly called himself “David Duke without the baggage,” is pushing to adopt closed primaries, since they would likely benefit hardliners.
Scalise himself says he’s concerned about new members of Congress missing out on freshman orientation, which is currently wrapping up without anyone attending on behalf of Louisiana’s 5th Congressional District, a race that won’t get resolved until Dec. 5. It’s not known yet, however, whether this proposal enjoys significant support in the state’s Republican-run legislature, though Scalise says he thinks senior GOP lawmakers will back it. Democratic Gov. John Bel Edwards has not yet addressed the matter.
● New Jersey: The leaders of both chambers of New Jersey’s Democratic-run legislature recently said they oppose making permanent the system of universal vote-by-mail that lawmakers temporarily implemented this year to provide a safe voting method amid the pandemic. Though the approach helped New Jersey reach its highest turnout in the modern era, the two leaders implied that mailing a ballot to every voter by default somehow pressures voters to use that method, even though in-person voting remains an option.
However, intra-party politics could be an unstated reason for Democratic legislators’ opposition, particularly for state Senate President Steve Sweeney, a centrist who has frequently fought with more progressive Gov. Phil Murphy. New Jersey is one of just a handful of states that holds legislative elections in odd-numbered years, when turnout typically plummets compared to federal election years.
A universal mail voting system, however, would likely mitigate that dropoff, since turnout is generally higher in states with all-mail voting. In particular, mail voting would likely encourage much greater participation among infrequent voters, who tend to be younger, more demographically diverse, and potentially more progressive. Higher turnout could therefore bolster primary challenges from the left against Sweeney and his allies.
Despite their opposition to mail voting, both Sweeney and Assembly Speaker Craig Coughlin signaled their support for a bill to adopt traditional early voting starting with next year’s legislative elections, a proposal that advanced in committee earlier this year.
2020 Census and Reapportionment
● 2020 Census: The New York Times reports that the Census Bureau will be unable to release the reapportionment data that determines how many congressional seats and Electoral College votes each state gets until after Donald Trump’s term expires on Jan. 20. Normally such data is delivered in December of census years, so the delay could potentially thwart Trump’s directive to exclude undocumented immigrants from the reapportionment population data by allowing Joe Biden to rescind it.
Multiple federal courts had already blocked Trump’s order, and the Supreme Court is set to hear Trump’s appeal in one of those cases on Nov. 30.
● 2020 Election Litigation: Donald Trump has continued to wage a litany of frivolous legal challenges in an attempt to throw out votes and overturn his election loss, but he’s lost almost every single one of his nearly three dozen cases and counting as of Friday afternoon. Trump’s contempt for the democratic process reached new extremes after he pressured GOP officials to try to block the certification of Biden’s victory in Michigan and demanded that federal courts declare him the winner of Nevada and Pennsylvania’s electoral votes, even though he trails in each state by tens of thousands of votes.
While legal experts have repeatedly opined that Trump’s effort to subvert the 2020 elections will ultimately fail, there are already signs he’s done damage to the country’s political system. Multiple polls have found that Trump voters widely and wrongly believe that Biden’s victory was fraudulent. America may avoid a crisis in this election thanks in part to Trump’s hamfisted ineptitude, but if a new normal develops where GOP voters routinely reject any Democratic wins as illegitimate, it may only be a matter of time before a future election sparks a real constitutional crisis.
● New York: With vote-counting still ongoing, it remains unclear whether New York Democrats have expanded their state Senate majority to the two-thirds mark that would give them control over redistricting after 2020.
This is the first election where New York has seen widespread absentee voting, and such votes have leaned heavily Democratic thanks in large part to Donald Trump discouraging Republicans from using mail voting. As a result, Democrats have gained significant ground after election night with the counting of mail votes, which FiveThirtyEight’s Nathaniel Rakich and The Appeal’s Daniel Nichanian are tracking to determine whether Democrats cross the two-thirds threshold.
Heading into 2020, Democrats held 40 seats and needed to pick up just two seats to win a supermajority, though that number includes a few conservative members such as state Sen. Simcha Felder, a Democrat who used to caucus with Republicans. According to Rakich and Nichanian’s tracker, Democrats are confirmed winners in 38 seats as of Friday afternoon and lead in four uncalled races, while Republicans lead in seven undecided contests, leaving Democrats in a strong position to surpass two-thirds.
● North Carolina: North Carolina Republicans have won at least two of the three state Supreme Court races on the ballot this year, and the third contest is currently undergoing a recount after Republican Associate Justice Paul Newby finished with just a 409-vote lead out of nearly 5.4 million cast in his challenge to Democratic Chief Justice Cheri Beasley. The recount has until Nov. 25 to conclude.
If Newby prevails, Democrats’ current 6-1 majority on the state high court would narrow to just 4-3, which has key implications for future battles over voting rights and redistricting. With a Democratic majority, the court is likely but not guaranteed to curtail gerrymandering by Republican lawmakers, but a future GOP majority would give Republicans free rein once again to draw extreme maps as they have in the past.
Regardless of the outcome of the recount, Republicans can next gain a majority in the 2022 elections, when three Democratic seats are up.