Programming Note: The Voting Rights Roundup will be taking a break the week of Sept. 4 but will return the following week.
● Congress: On Tuesday, House Democrats voted along party lines to pass the John Lewis Voting Rights Advancement Act, which would restore and expand protections established by the 1965 Voting Rights Act that have been repeatedly undermined by conservatives on the Supreme Court. The bill would be one of the most significant voting rights expansions in U.S. history, but it still faces long odds in the Senate thanks to lockstep Republican opposition and the refusal by moderate Democrats such as Joe Manchin and Kyrsten Sinema to budge on their resistance to curtailing the filibuster.
The bill aims to undo the damage of several Supreme Court decisions over the last two decades and block many of the voting restrictions adopted by GOP-run states this year, chiefly by reviving the “preclearance” system that the court effectively gutted in 2013’s Shelby County v. Holder case.
Until that point, the VRA required a number of predominantly Southern states and local jurisdictions with a history of racial discrimination to seek preapproval with the Justice Department to ensure any changes to voting rules or procedures weren’t discriminatory. Once the court overturned that system by ruling that the formula for determining which jurisdictions were covered was unconstitutional, Republican legislatures across the South unleashed a new wave of voter suppression laws.
The John Lewis VRAA attempts to get around the restrictions on the coverage formula laid out in Shelby County by imposing a nationwide preclearance system that would cover any state that’s seen at least 15 voting rights violations take place within its borders in the past 25 years, or 10 violations if those infractions were committed by the state itself.
Local governments could be placed under preclearance for three violations over that same time period, but importantly, a state could also be placed under preclearance for three location violations if the state is directly administering elections. This is an update from a similar version Democrats passed in 2019, seemingly a response to several Republican-run states such as Georgia passing laws allowing the state and partisan officials to take greater charge of local election administration.
Preclearance would also apply to every state, without a need to show prior wrongdoing, in certain high-profile areas such as redistricting in areas with large communities of color; certain voter ID requirements; and reductions in polling hours.
Under the pre-2013 preclearance regime, covered jurisdictions also faced an additional restriction to prevent “retrogression” via laws that reduce protected minority groups’ access to the ballot or their ability to elect their preferred candidates. The new bill would restore the non-retrogression rule and apply it nationally instead of just to jurisdictions under pre-clearance. By making recently passed laws subject to non-retrogression rules, the John Lewis VRAA could be used to block the wave of voting restrictions GOP legislatures have adopted this year in response to the 2020 elections.
The VRAA would further overturn the Supreme Court’s ruling last month that eviscerated the remaining pillar of the old VRA that had been left standing after Shelby County. That provision allowed courts to block voting laws on the basis of their discriminatory effect, which is typically much easier to prove than to show that officials acted with discriminatory intent. That decision significantly increased the level of discriminatory and burdensome effects that plaintiffs must demonstrate for a voting law or procedure to violate the Voting Rights Act, giving lawmakers or officials who enact such rules great deference in the interest of preventing supposed fraud—even without any evidence of such fraud.
While the new VRAA doesn’t outright ban partisan gerrymandering of congressional districts (as would another Democratic bill, best known as H.R. 1), it does strengthen protections against race-based gerrymandering at all levels of government. The John Lewis bill would codify a 1986 Supreme Court decision called Thornburg v. Gingles that has governed when so-called “majority-minority” districts must be drawn.
However, the bill wouldn’t completely overturn the 2009 Supreme Court decision Bartlett v. Strickland, which held that a single minority group must constitute a majority of the voting age population in a district to qualify for VRA protection. It thereby barred protection for so-called “crossover” districts where a minority group that is shy of a numerical majority could combine with enough like-minded white voters to form a majority. Nevertheless, the bill would guarantee that “coalition” districts, where different minority groups combine to form a majority, can be VRA-protected if they meet certain conditions, something that federal courts have been divided over.
Finally, the new bill would reverse the ability of the courts to abuse a 2006 ruling called Purcell v. Gonzalez in order to limit plaintiffs’ ability to overturn illegal voting restrictions shortly before Election Day. Purcell was supposed to prevent voter confusion that could arise with major voting changes right before an election, but the courts have repeatedly used it to allow illegal voting restrictions or districts to remain in place until after an election even when they’d been challenged well in advance. The bill would instead forbid this practice if a case is filed within 30 days of a discriminatory measure’s adoption or more than 45 days before an election. It would also bar the Supreme Court from issuing emergency rulings on election cases without a written explanation, something conservative justices repeatedly did in 2020.
It remains to be seen whether there is any chance of the VRAA passing the Senate, though Manchin advocated for the bill’s passage in a June op-ed explaining his opposition to H.R. 1. But he, Sinema, and any other holdouts would still have to be willing to carve out an exemption that allows the bill to overcome a GOP filibuster to become law.
There also remains a significant risk that the Supreme Court’s conservatives would simply move the goalposts once more to find a way to strike down major parts of the bill. If it’s adopted and can survive judicial review, though, the John Lewis VRAA would significantly strengthen and expand the federal government’s commitment to protecting the right to vote.
● Colorado: In a split, Colorado’s independent redistricting commissions have taken opposite stances on the practice known as “prison gerrymandering”: the congressional panel will allow it, but the board handling legislative redistricting has voted to ban it.
Voting rights advocates have sought for years to stop prison gerrymandering, which assigns incarcerated individuals to their place of imprisonment rather than their last address. The legislative commission voted 10-2 to abandon the practice, but a 6-5 vote in favor of a ban on the congressional commission fell short of the necessary 8-vote supermajority.
Legislators passed a law in 2020 barring the commissions from prison gerrymandering, but the state Supreme Court ruled in a different case earlier this year that lawmakers can’t impose additional requirements on the panel (which was created by a constitutional amendment) via statute.
Prisons are often located in heavily white rural communities while prisoners are disproportionately from urban communities of color; prison gerrymandering therefore buttresses the political power of conservative areas by increasing their population yet does so by adding people who often can’t vote. The commissions’ decisions affect approximately 14,000 people and will likely play a bigger role in legislative redistricting, where districts are much smaller.
● Illinois: A federal court has rejected a Republican-backed attempt to strike down Illinois Democrats’ newly adopted legislative gerrymanders, instead allowing the lawmakers to proceed with a special legislative session next week to revise the districts to address the plaintiffs’ concerns.
This dispute centered on the Democrats’ use of preliminary population estimates to draw new maps in advance of receiving data from the 2020 census earlier this month in order to meet a late-June deadline in the state constitution. Republicans and Latino voter advocates had both filed lawsuits arguing that this effort was unconstitutional because reliance on those population estimates had led to a large variance in size between districts. Federal courts have generally held that legislative districts may vary by up to 10% between the smallest and largest districts, but the newly released census data confirmed that some districts differed by nearly 30%.
If Democrats hadn’t met the June deadline for drawing new districts, or had the court sided with Republicans, a bipartisan “backup commission” would have taken over the legislative redistricting process. In previous decades, when this commission has come into play and predictably deadlocked along party lines, the state Supreme Court would randomly choose between the two parties’ nominees for a tiebreaker. That process effectively gives either party a coin-toss chance to draw their own gerrymanders. Democrats had sought to avoid this scenario by passing maps early, while Republicans were hoping to push the process to the backup commission.
● New Jersey: Democratic Gov. Phil Murphy has signed a bill, passed by the Democratic legislature with some bipartisan support, to ban prison gerrymandering at all levels of government, extending a 2020 law that banned it for legislative redistricting.
● Pennsylvania: Pennsylvania’s court-appointed tiebreaker on the state’s bipartisan legislative redistricting commission has sided with the panel’s two Democratic appointees in a 3-2 vote to end prison gerrymandering (except for those serving a life sentence). Since the commission only handles legislative redistricting, this change won’t affect congressional or local redistricting.
Prison gerrymandering tends to overrepresent heavily white rural communities where prisons are typically located at the expense of underrepresenting urban communities of color. The Philadelphia Inquirer notes that 56% of the 37,000 people in state prisons are Black or Latino compared to just 20% of the state overall.
● Virginia: Republican state Sen. Travis Hackworth and other officials from rural parts of the state that are home to a number of prisons have filed a lawsuit asking the conservative-leaning state Supreme Court to block Virginia’s bipartisan redistricting commission from implementing a new state law that bans prison gerrymandering. That practice tends to award outsized political power to rural white communities such as Hackworth’s where prisons are located at the expense of urban communities of color where many inmates are from, a problem that the Democratic-backed law aims to remedy.
● Wisconsin: Conservative activists have filed a lawsuit with the Wisconsin Supreme Court asking it to take over redistricting in the likely event that Democratic Gov. Tony Evers and the Republican-run legislature are unable to agree on drawing new congressional and legislative districts. At the same time, voting rights advocates have filed what is now the second lawsuit asking a federal court to assume control over redistricting instead, following a recent similar lawsuit filed by a group of Democratic voters.
Democrats likely prefer that a federal court rather than the state courts get to draw the lines, given that conservatives hold a 4-3 majority on the Wisconsin Supreme Court. For the same reason, Republicans have been trying to ensure that the probable impasse between Evers and GOP lawmakers gets resolved in the state judicial system.
● Arizona: Voting rights groups have filed a federal lawsuit challenging two laws that Republicans enacted earlier this year to restrict voting access. The first law ended the permanency of Arizona’s popular mail voting list that automatically sends a ballot in all future elections to voters who opt in by slating voters for removal if they don’t vote by mail in a four-year period or respond to a single mailed notification within 90 days. The second law makes Election Day the deadline for mail voters to fix an issue with a missing signature on their ballot, even though voters with supposedly non-matching signatures have up to a week after Election Day to resolve any issues.
Separately, Republican activists have launched an effort to put an initiative on the ballot that would require much stricter voter ID for mail and early voting. Under the proposal, people voting or dropping off a mail ballot in-person would be required to show a photo ID without exception, eliminating an option to show two forms of non-photo ID. Mail voters would also face a new requirement to include the number for their driver’s license, state ID, or Social Security number with their mail ballot. To qualify for the ballot next year, supporters must gather roughly 238,000 signatures by next July.
● North Carolina: A state court in North Carolina issued a preliminary injunction this week that blocks the disenfranchisement of citizens on parole or probation for a felony conviction, immediately clearing the way for roughly 55,000 North Carolinians to register to vote. Republican legislative leaders have already vowed to appeal and to seek to temporarily block the ruling while an appeal is ongoing. North Carolina’s Supreme Court has a 4-3 Democratic majority, giving opponents of felony disenfranchisement hope that the ruling will survive an appeal if it reaches the high court.
The plaintiffs in this case are challenging the law disenfranchising people on parole or probation on the grounds that it was adopted after the Civil War with the intent to discriminate against Black people, arguing that a revision to the law in the 1970s did not fully remedy its racist intent. They noted that Black people make up 42% of those disenfranchised while on parole or probation yet represent just 21% of the state’s total population.
If this ruling survives on appeal, North Carolina would join Virginia as the only Southern states that allow all citizens to regain their voting rights after they leave prison, and the only one that does so automatically. Thanks to reforms in recent years, a majority of Americans now live in states where only those who are currently in prison remain unable to vote.
● Texas: Texas Republicans were finally able to pass their sweeping voting restriction bill through the state House this week after a sufficient number of Democrats ended their boycott and returned to the state, providing the chamber with the necessary two-thirds quorum to conduct legislative business. Democrats had fled the state for Washington, D.C. last month to block the bill’s progress and draw national attention to the plight of voting rights in the Lone Star State. However, Republican Gov. Greg Abbott had threatened to keep calling lawmakers back for special sessions until the bill was passed.
- Ban drive-thru early voting;
- Eliminate 24-hour early voting locations by setting limits on hours of operation from of 6 AM to 10 PM at the latest;
- Expand early voting in small, mostly white counties while limiting it in larger, more diverse counties that lean Democratic;
- Add new voter ID requirements for absentee voting;
- Make it a felony for election officials to send unsolicited absentee ballot applications to voters or use public funds to help third parties to do so; and
- Enable partisan “poll watchers” to potentially harass and intimidate voters while limiting their oversight by election officials by imposing criminal penalties for getting in their way.
State Senate Republicans have already passed their own version of the legislation, so now the two chambers will have to agree on a single version of the bill before it can go to Abbott for his signature.
● Florida: A group led by former state Rep. Sean Shaw, who was the Democratic nominee for state attorney general in 2018, has announced that it’s dropping its plan to place three initiatives on the ballot next year to expand voting access and will instead aim to qualify the measures in 2024. The three measures, which are each separate in order to satisfy a constitutional requirement that limits initiatives to a single subject, would:
- Adopt automatic voter registration via Florida’s driver’s licensing agency;
- Enact same-day voter registration; and
- Ban the denial of the restoration of voting rights because of outstanding debts.
The third amendment on voter eligibility is intended to overturn a poll tax that Republicans passed in 2019 by requiring voters with a felony conviction who have completely served any prison, parole, or probation sentences to also pay off all court fines and fees before they can regain their voting rights.
Supporters cited the difficulty of raising funds after Republican lawmakers passed a law earlier this year that capped donations to ballot measure campaigns at $3,000; unlimited donations had previously been allowed. A federal court blocked that new law on First Amendment grounds, and Republicans recently indicated they wouldn’t appeal, but initiative backers said it had prevented them from raising enough money to get onto the ballot in time for next year.
● Idaho: Idaho’s Supreme Court has unanimously struck down a law that Republicans passed earlier this year to effectively kill off progressive ballot initiatives, ruling that legislators had “failed to present a compelling state interest” for limiting the “fundamental rights” of citizens to seek redress at the ballot box.
The new law required supporters to gather signatures equal to 6% of registered voters in each of the state’s 35 legislative districts instead of the previous requirement that signatures be obtained from 18 districts. The court also rejected a provision that delayed initiatives from going into effect until July of the year following the election in which they’re passed.
Democrats passed the first law over GOP opposition to count mail ballots that are postmarked by Election Day but not received until up to a week afterward. The second measure was passed with bipartisan support to ensure that voters are not moved to “inactive” status—and therefore not automatically mailed a ballot in every election in this vote-by-mail state—simply if they hadn’t voted in recent elections rather than moved or died.
Referendum supporters will need to gather nearly 75,000 voter signatures for each measure by Sept. 24 in order to qualify for next year’s ballot.
● California: Two California voters have filed a federal lawsuit arguing that next month’s recall election targeting Democratic Gov. Gavin Newsom is unconstitutional because of the unusual way California structures its recalls.
Under state law, voters are presented with a two-part question that first asks if they want to recall the particular official and a second part that asks who should replace the incumbent if a majority votes for the recall on the first question. However, because the law prevents the incumbent from also running in the replacement election, it’s possible, if not likely, that a free-for-all ballot with a large field candidates will see the winner prevail with a small fraction of the total vote—and fewer votes than the number who voted to keep the incumbent on the first question.
The few polls that have been publicly released have generally shown Newsom prevailing, though several have found a tight race and one recent survey had the recall succeeding. However, they do largely agree that should Newsom be recalled, hardline right-wing radio host Larry Elder would be the most likely candidate to replace him, but with 46 candidates on the ballot, he would almost certainly win just a small plurality of the vote.
Berkeley School of Law dean Erwin Chemerinsky recently penned a New York Times op-ed arguing that the recall process was indeed unconstitutional, but his view has not been widely shared among legal experts, and plaintiffs will likely face a difficult challenge in court. Furthermore, ballots have already been mailed out, meaning it’s too late for a court to order a fix such as adding Newsom’s name to second question on the ballot without causing a huge disruption to the election process.
Nevertheless, California’s recall election process has been widely criticized ever since the 2003 recall against former Democratic Gov. Gray Davis, and Democratic lawmakers could try to reform the system for future elections, particularly if Elder replaces Newsom while winning far fewer votes. Other states with recall laws allow the lieutenant governor to take over if the governor is recalled or simply hold a partisan election with primaries rather than use a yes/no format with two separate questions. Some states further require recall proponents to demonstrate that the officeholder has broken the law or violated the public trust in some way.