Leading Off
● Virginia: In a major setback for voting rights, Republican Glenn Youngkin narrowly defeated former Democratic Gov. Terry McAuliffe in the race to become Virginia's next governor, giving Youngkin the power to discontinue a practice begun by McAuliffe and his successor, Democratic Gov. Ralph Northam, of using executive orders to expand voting rights for formerly incarcerated people. Republicans also appear to have gained a razor-thin majority in the state House, though there are multiple races that are still too close to call with the possibility that Democrats could salvage a 50-50 tie after absentee and provisional ballots are fully processed.
After winning the governor's office in 2017 and gaining full control over the legislature in 2019 to obtain unified government for the first time in a quarter century, Democrats passed dozens of laws to expand access to voting, reform redistricting, and make the election process run more smoothly, progress that is now at risk from a Republican governor and state House. Democrats still narrowly hold the state Senate by 21-19 since it wasn't up for election this year, but Republicans would only need to persuade a single Democrat to defect to reverse some of those changes after also flipping the lieutenant governor's office, which breaks ties.
Among the most immediate effects of the GOP victory in Virginia, Youngkin could discontinue a policy that McAuliffe implemented in 2016 where he used his executive power to end lifetime disenfranchisement for those convicted of felonies by restoring voting rights to people who had fully served their sentences. Northam continued that policy and earlier this year extended it to restore voting rights to everyone on parole or probation, enabling more than 200,000 people to vote. (Only those still in prison remain unable to vote.) However, Youngkin could refuse to issue such executive orders and in doing so even resurrect lifetime disenfranchisement going forward. Before McAuliffe's executive orders, this remnant of Jim Crow had left one in five Black Virginians permanently banned from voting, five times the rate of whites.
Campaign Action
Democrats had also passed a constitutional amendment that would permanently end felony disenfranchisement for everyone not in prison. However, because lawmakers have to pass that same constitutional amendment again after this year's elections before it could go to voters for their approval, Republicans will likely be able to block its passage in the state House by refusing to allow a vote, even though it could still have majority support if a few Republicans were to vote for it as they did earlier this year.
In addition, Virginia (along with South Carolina) is one of just two states where legislators directly pick justices for state Supreme Court, which currently has a 5-2 conservative majority and could be critical for voting rights and fair redistricting. Over the next two years, two justices—one conservative and one liberal—will see their terms come to an end, giving lawmakers a chance to reshape the court in either direction. Both chambers vote together when selecting justices, so the fate of the remaining uncalled races will matter immensely for whether a Republican-majority state House could outvote the Democratic-controlled Senate. If the state House is tied 50-50, Democrats would have a one-seat majority, but a 52-48 GOP state House would give Republicans a one-seat majority instead.
Youngkin's victory also means Republicans will eventually gain a majority on the state Board of Elections, giving them control over election administration, which the GOP could use to try to overturn a Democratic Electoral College victory in 2024. Youngkin has already joined in GOP efforts to undermine voter confidence in Democratic victories last year by demanding an "audit" of the 2020 elections even though Virginia already conducted such an audit that confirmed the results. And if Republicans are able to hold the House and capture the Senate in 2023, they would regain full control over state government and could use it to roll back nearly all of the voting reforms Democrats have passed in the last two years.
Election Recaps
● New Jersey: Conservative Democrat Steve Sweeney, who has served as president of New Jersey's Senate since 2010, has lost in a major upset to Republican Edward Durr, but many Democrats—and progressive activists in particular—will be happy to see Sweeney gone, particularly since the party retained the governor's office and control over both chambers of the legislature in Tuesday's elections. Sweeney has long opposed many progressive priorities backed by Democratic Gov. Phil Murphy, including a proposal to allow same-day voter registration, and it's possible that a different Democrat leading the Senate could allow a vote on such a bill.
However, Democrats no longer have the three-fifths majority in the state Assembly needed to put constitutional amendments on the ballot in just a single year. They instead would have to pass any amendment twice—both before and after a state election—before it could go to a referendum, which might complicate their ability to pursue certain election reforms.
● New York: In New York, voters rejected two constitutional amendments that Democratic lawmakers placed on the ballot to expand voting access, along with a third that would have made several changes to redistricting. All three of the measures are currently failing with between 42% and 44% of the vote (with a majority needed for passage), though there are still uncounted absentee ballots that could narrow the eventual margin.
Of the defeated amendments, Proposal 3 would have allowed lawmakers to pass a same-day voter registration law—something currently forbidden by the state constitution—which Democratic leaders have said they'd go forward with had the amendment passed. Proposal 4, meanwhile, would have removed the excuse requirement to vote absentee. Last year, then-Gov. Andrew Cuomo issued an executive order that allowed any voter to cast an absentee ballot because of the pandemic, but the passage of Proposal 4 would have laid the groundwork for the legislature to make excuse-free absentee voting permanent.
A third amendment, Proposal 1, would have also enacted several changes to the state’s redistricting laws that would have diminished the sway Republicans have over the mapmaking process but would have also enshrined a few nonpartisan requirements for future redistricting plans in the state constitution. However, since Democrats still hold two-thirds supermajorities in the legislature, they may nevertheless still have the numbers necessary to override the state's bipartisan redistricting commission and draw their own legislative and congressional maps.
In a damning sign of political malpractice, the state Democratic Party spent nothing to support the three ballot measures while conservative opponents spent millions spreading lies that the amendments would increase fraud. Democratic Party chair Jay Jacobs, who for years was a steadfast ally of the now-disgraced Cuomo, claimed that Democratic lawmakers didn't ask for help, something that prominent state Sen. Mike Gianaris vociferously disputed. Cuomo and his allies had long stymied progressives from enacting voting reforms until Democrats overcame the GOP gerrymander Cuomo had signed and flipped the state Senate in 2018.
Democrats have since passed a broad range of reforms to improve New York's nationally criticized voting system over the last three years, and these two voting amendments would have been the culmination of that effort. Now, however, they'll have to start the process all over again—and devote the necessary resources to ensure a better result—if they want to make these constitutional changes.
● Pennsylvania: Commonwealth Court Judge Kevin Brobson, a Republican, was elected Pennsylvania's next Supreme Court justice after defeating Superior Court Judge Maria McLaughlin, a Democrat, by a narrow 51-49 margin. Brobson will replace Republican Justice Thomas Saylor, who will hit the state’s mandatory retirement age in December, meaning the 5-2 Democratic majority on the bench will remain unchanged.
The Democratic majority on Pennsylvania's top court, in place since the 2015 elections, has been critical for voting rights and redistricting. Most notably, the court struck down the GOP's congressional gerrymander and replaced it with a much fairer map in 2018. The justices also protected access to mail voting during the pandemic amid Republican efforts to restrict it. Barring unexpected vacancies, the soonest Republicans could take back the court would be 2025.
Redistricting
● Alabama: Republican Gov. Kay Ivey signed Alabama's new congressional and legislative maps on Thursday, a day after lawmakers in the GOP-run legislature gave them their final approval. The congressional plan preserves the state's current delegation—which sends six white Republicans and one Black Democrat to Congress—by leaving in place just a single Black district.
According to Dave's Redistricting App, the redrawn map packs an excessive number of Black voters into the 7th District, making it 55% Black, while ensuring every other district is at least 62% white and no more than 30% Black. Alabama could, however, easily create a second district where Black voters would be able to elect their preferred candidates, given that African Americans make up nearly two-sevenths of the state's population, but Republicans have steadfastly refused to do so.
Black voters, with the support of Democrats, filed a federal lawsuit seeking to compel a second Black district almost immediately after Ivey signed the new congressional map, making it the second such lawsuit after an earlier one was filed in late September.
● Arkansas: A group called Arkansans for a Unified Natural State says it plans to gather signatures for a veto referendum to overturn the state's new Republican-drawn congressional map, an undertaking that would also have the effect of suspending the map if the referendum qualifies for next year's ballot. Organizers would need to collect 53,491 signatures from registered voters in at least 15 counties by Jan. 13. The group previously announced plans to qualify veto referendums for three other laws the legislature passed earlier this year but abandoned those efforts after failing to obtain enough signatures.
● Colorado: As expected, the Colorado Supreme Court has approved the new map adopted by the state’s independent congressional redistricting commission in September. Under the 2018 amendments that created the commission and its separate legislative counterpart, the court is required to assess any maps to ensure they adhere to criteria laid out in the state constitution and accept input from interested parties. The justices concluded that the map’s challengers did not meet the constitution’s high standard of review: whether commissioners engaged in an "abuse of discretion."
Those challengers included Latino voting rights advocates, who argued that the state constitution provided greater protections for racial and language minority groups than specified in the Voting Rights Act. The court, however, agreed with the commissioners, ruling that language in the constitution does not afford such groups additional protections. The justices also rejected complaints from Democrats that the commission failed to properly prioritize the creation of competitive districts.
The end result is a map that could easily result in equal representation for Republicans and Democrats, despite the fact that the state voted for Joe Biden by a comfortable 55-42 margin last year. That’s because the new 8th District, based in the Denver suburbs, would have gone for Biden 51-46 and in fact would have voted for Donald Trump 46-45 in 2016. While this district has a large Latino minority, many of those residents aren't eligible to vote. Only about 27% of the district's voting eligible population would be Latino compared to the 66% that is white, and given traditional turnout patterns, the Latino share of the electorate would likely be even smaller.
Thanks to Colorado’s 2018 amendments, the legislature and governor no longer play a role in redistricting, meaning that the new congressional map is now law. The state Supreme Court is also reviewing the commission’s legislative proposals, but they’ll likely pass muster for the same reasons. While it’s possible that these maps could face further legal challenges through normal lawsuits, the Supreme Court’s interpretation of state law regarding the Voting Rights Act probably forecloses what would have been the most potent avenue of attack.
● Delaware: Democratic Gov. John Carney has signed Delaware's new legislative maps, just a day after they were passed by lawmakers. Democrats currently control both the state House and Senate and will almost certainly remain in charge in this solidly blue state that voted for native son Joe Biden 59-40 last year.
● Iowa: Republican Gov. Kim Reynolds signed Iowa's new congressional and legislative maps into law on Thursday, a week after lawmakers passed them almost unanimously. The congressional plan creates three red-leaning districts and one safely Republican seat, which we outlined previously in our other newsletter, the Morning Digest.
Despite the wide bipartisan support it received, the map could face a legal challenge according to redistricting expert Michael McDonald. Iowa law requires the drawing of "reasonably compact districts" that are "square, rectangular, or hexagonal in shape, and not irregularly shaped." As you can see here, though, the new districts are anything but regular.
● Massachusetts: Republican Gov. Charlie Baker has signed Massachusetts' new legislative maps, which passed both chambers last month almost unanimously. A recently introduced congressional map remains pending before lawmakers.
● Montana: The independent tiebreaker on Montana's bipartisan redistricting commission voted with Republicans on Thursday to advance the GOP's proposed congressional map. The plan could still be tweaked before the commission's Nov. 14 deadline to adopt a final map but is likely very close to final.
The map divides the state into an eastern and a western district, with the latter the more competitive of the two. Compared to the GOP's initial proposals, the western seat (which would be numbered the 1st) is about a point bluer and would have gone for Donald Trump by a 52-45 margin last year, making it about 3 points redder than Democrats' preferred plans. The 2nd District, by contrast, would have voted 62-35 for Trump. By and large, the map bears the hallmarks of a nonpartisan plan that doesn't seek to favor one party over the other.
● New York: In an item last week, we incorrectly stated that a new New York law aimed at curbing gerrymandering applied only to the 23 counties with their own governing charters. The law in fact applies to the entire state, at both the county and local level. Thank you to Jeff Wice for this correction.
● North Carolina: North Carolina's Republican-run legislature passed new congressional and legislative maps on Thursday, meaning they are now law because redistricting plans do not require the governor's approval under state law. All three are extreme GOP gerrymanders designed to lock the party into power for years to come, despite the state's perennial tossup status.
With North Carolina gaining a seat due to redistricting, the congressional map would create 10 safely red districts and just three that would be safely blue, with one swing seat currently held by a Democrat that's been trending hard to the GOP. By comparison, the map used in last year’s elections—which Republicans had to repeatedly redraw thanks to intervention by the courts—sent eight Republicans and five Democrats to D.C.
We delved into the details of the new districts, including where each incumbent could run, in our weekday newsletter, the Morning Digest. The new map notably undermines Black representation by making a Democratic-leaning district held by African American Democrat G.K. Butterfield whiter, turning it into a pure swing district that could elect a Republican favored by white voters in next year's midterm environment. Republicans also split the three cities of the Piedmont Triad region among four different heavily white and Republican districts even though most of the area now is currently in one Democratic-held district that has a sizable Black population.
No state has seen more litigation over redistricting in the past decade than North Carolina, and that's not going to change: An updated lawsuit has already been filed in state court over the congressional map in the same case that saw a state court block a prior GOP map in 2019 on the basis that partisan gerrymandering violates the state constitution. Separately, a new lawsuit has also been filed over the legislative maps. The chief attack on the maps centers on the fact that Republicans say they ignored racial data in drawing their lines, in contravention of the Voting Rights Act, with Republicans baselessly claiming that the VRA no longer applies.
● Ohio: Republicans in Ohio's Senate and House have each released a draft congressional map, both equally extreme gerrymanders. The House version would likely send 13 Republicans and just two Democrats to Congress next year, while the Senate plan would do the same, albeit with districts configured differently.
● Texas: Three lawsuits were filed this week by Democrats and advocates for voters of color that are challenging various parts of the gerrymanders that Republicans adopted last month. Two of the suits were filed by Latino voter advocates, one in state court arguing that the state House map violates a state constitutional limit on splitting counties and another in federal court challenging the congressional, state House, and state Board of Education lines for racial discrimination. Meanwhile, Democratic state Sen. Beverly Powell and several voters filed an additional federal lawsuit arguing that the GOP's redraw of Powell's 10th District discriminated against Black and Latino voters.
Two previous federal lawsuits had already been filed in recent weeks, meaning there are now four federal cases and five in total.
● Wisconsin: A committee in Wisconsin's Republican-run state Senate has passed the GOP's proposed congressional and legislative maps, but they're certain to be vetoed by Democratic Gov. Tony Evers due to their extreme gerrymandering.
Voting Access Expansions
● Congress: As expected, Senate Republicans, with the exception of Alaska Sen. Lisa Murkowski, all voted to filibuster Democrats' bill to restore the Voting Rights Act, known as the John Lewis Voting Rights Advancement Act. The vote blocked Democrats from beginning debate in spite of some compromises that West Virginia Sen. Joe Manchin and other Democrats made to bring Murkowski on board. We previously explained how this bill would restore and expand many of the VRA protections that the conservatives on the Supreme Court have repeatedly undermined, but unless Manchin and fellow centrist Sen. Kyrsten Sinema agree to curtail the filibuster, the bill stands no chance of overcoming GOP obstruction.
Voter Suppression
● Arkansas: Arkansas Republicans have appealed to the state Supreme Court after a lower court rejected their motion to dismiss a lawsuit challenging four voting restriction laws that the GOP enacted earlier this year. The good-government plaintiffs in this case are opposing laws that:
- Eliminate the ability of voters who lack ID to sign a sworn statement and instead strictly require ID for ballots to count;
- Require voters to return their absentee ballots to election officials by the Friday before Election Day instead of by Election Day itself—all but one other state sets that deadline on Election Day or afterward;
- Require a voter's signature on an absentee ballot application to match their original signature on their voter registration form, even though voter signatures often change over time; and
- Effectively ban giving food or drinks to voters waiting in line to vote by restricting who may linger near polling place entrances.
● Texas: The Department of Justice is the latest party to file a federal lawsuit challenging parts of the major new voting restriction law that Texas Republicans enacted last month, which has already drawn several other lawsuits in state and federal court.
As we've previously detailed, the GOP's law adds criminal penalties to a wide range of voting activities and includes measures that:
- 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 that are heavily Republican while limiting it in larger, more diverse counties that lean Democratic;
- Add new voter ID requirements for absentee voting;
- Make a felony for election officials to send unsolicited absentee ballot applications to voters or use public funds to help third parties to do so;
- 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; and
- Require people who are assisting voters with disabilities who aren't the voters' caregivers to provide documentation and take an oath that they will follow limits on assistance, which advocates argue is intimidating and burdensome.
Campaign Finance
● Ballot Measures: The Federal Election Commission voted 4-2, with Democratic Chairwoman Shana Broussard joining the three Republicans, to affirm that foreigners can donate to ballot measure campaigns in the United States on the nonsensical grounds that they are supposedly not elections under federal law (foreigners are still banned from giving to federal candidates). Just this week, Maine voters rejected a power transmission project that was the subject of the state's most expensive referendum campaign in history after Canadian energy giant Hydro-Quebec and its allies spent $50 million in an unsuccessful effort to win the vote.