Leading Off
● Michigan: Michigan Republicans have launched an effort to adopt new statutory voting restrictions via ballot initiative, but in reality, it's an attempt by GOP lawmakers to use their gerrymandered legislative majorities to overcome Democratic Gov. Gretchen Whitmer's veto power and limit voting access without voters even getting a chance to weigh in.
Republicans would have to gather roughly 340,000 voter signatures to qualify an initiative for the 2022 ballot and ordinarily would then have to persuade voters to support the restrictions. Rather than take their case directly to voters, however, they plan to take advantage of an unusual state law that allows legislators to pass initiatives that qualify for the ballot before they ever even appear on the ballot—and without the possibility of a veto by the governor or rejection by voters.
Republicans can therefore use their legislative majorities, which were elected with fewer votes than Democrats, to pass new voting restrictions into law with the support of voters equal to just 6% of 2020 presidential turnout.
The GOP's proposal contains measures that would:
- Adopt a stricter voter ID requirement for in-person voting by eliminating an option for voters who lack ID to swear to their identity under penalty of perjury;
- Require voter ID for absentee ballot applications;
- Ban the secretary of state—currently Democrat Jocelyn Benson—and local officials from mailing unsolicited absentee ballot applications to voters, as Benson did last year due to the pandemic; and
- Ban private grants to fund election administration, which GOP legislatures across the country have outlawed this year after nonprofits linked to Facebook CEO Mark Zuckerberg and other wealthy donors gave millions to remedy election underfunding last year.
The measure also includes $3 million in funding that ostensibly would provide free ID cards to voters to meet the voter ID requirement. However, the inclusion of a spending provision is designed to prevent opponents from using a separate veto referendum to block the full proposal from taking effect, since the state constitution bars veto referendums from targeting spending measures. Opponents would instead have to place a constitutional amendment on the ballot to overturn the new law, which would require roughly 425,000 signatures instead of the 213,000 needed for a veto referendum.
It's unclear, though, whether Republicans will be able to execute this scheme in time for it to take effect for next year's elections instead of waiting until the 2024 presidential election, since initiative supporters must first obtain state approval before they can begin gathering signatures.
Redistricting
● Alabama: Republican officials in Alabama have dropped their lawsuit over the Census Bureau's new method of adding statistical "noise" to 2020 census data to protect respondents' privacy, which opponents have argued compromises the accuracy of the census for redistricting purposes. A federal district court had previously rejected Alabama's attempt to block the use of this method, known as "differential privacy," in June.
● Illinois: Illinois Democrats swiftly passed revised legislative gerrymanders into law after last month's release of census data revealed that some districts under the maps they had passed earlier this year had impermissibly large population divergences. Democrats had originally passed districts last spring using preliminary data estimates in order to meet a June deadline under the state constitution, and a federal court had recently rejected a Republican-backed attempt to invalidate the districts without giving the Democratic legislature a chance to fix the problem. The passage of revised maps will likely moot the lawsuit.
As we had previously detailed, 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 had 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.
● Michigan: Activist Robert Davis has filed a lawsuit over plans by Michigan's new independent redistricting commission to miss the state constitution's deadline for passing new districts due to the delayed release of census data. Described by the Detroit Free Press as a "serial litigant," Davis is asking the state Supreme Court to compel the commission to complete drawing new maps by the original Sept. 17 deadline and adopt them by Nov. 1 after 45 days for public comments.
Although the state Supreme Court rejected the commission's request to pre-emptively extend the deadlines back in July, it didn't foreclose the possibility of doing so later.
Voting Access Expansions
● California: State Senate Democrats have passed a bill that would permanently adopt universal mail voting after temporarily implementing it during the pandemic. Assembly Democrats passed the legislation earlier this year, but a final vote is needed before the bill can go to Democratic Gov. Gavin Newsom.
Voter Suppression
● Georgia: A panel of three judges on the 11th Circuit Court of Appeals, all of whom were appointed by Republican presidents, has unanimously upheld a lower court ruling that rejected the ACLU's argument that Georgia requiring voters to pay postage on mail ballots and applications was an unconstitutional poll tax. The court noted in its opinion that voters can still vote in-person or return their absentee ballots by drop box. The ACLU did not say whether it would appeal the ruling but stated that "all legal options remain on the table."
● New York: Before he resigned last month, former Democratic Gov. Andrew Cuomo signed a law that requires the governor to call special elections for state legislative districts in a much timelier manner than before. Under the new law, the governor must do so within 10 days of a vacancy arising, and the election would have to take place within 40 to 50 days after that. Special elections would not be required for vacancies arising after March 31 in even-numbered years, and the new law doesn't apply to congressional seats.
Legislators almost unanimously passed this law after Cuomo had repeatedly dragged his feet on ordering special elections during his tenure. In one case in 2019, for instance, a safely Republican state Senate district became vacant on March 11 but didn't see a special election until November that year.
● North Carolina: The North Carolina Court of Appeals has temporarily blocked a trial court ruling while Republicans appeal the lower court's decision that had allowed people on parole or probation for a felony conviction to vote. Last month, that court had issued a preliminary injunction siding with voting rights groups who argued that the law disenfranchising voters who weren't in prison illegally discriminated against Black voters in violation of the state constitution. Plaintiffs have indicated that they would appeal the appellate court's decision to the state Supreme Court.
● Pennsylvania: Fourteen Republicans in the state House have filed a lawsuit in state court that aims to invalidate part of a major 2019 voting law that, among other things, enabled no-excuse absentee voting. That law was passed by the Republican-run legislature in a compromise with Democrats, and all but one of the plaintiffs who was in office at the time voted for the bill.
The GOP legislators' lawsuit argues that the state constitution requires lawmakers to give voters a way to vote absentee only if they can't vote in person for certain reasons. However, the Associated Press' Marc Levy explains that the state constitution doesn't outright prohibit legislators from expanding who can vote absentee. The state Supreme Court has previously rejected GOP efforts to limit no-excuse absentee voting in litigation stemming from Donald Trump's attempts to overturn his 2020 election loss.
● Texas: Republican Gov. Greg Abbott has finally signed a major new voting restriction bill into law after a lengthy delay that ended last month when state House Democrats gave up their boycott of the legislature, giving Republicans the two-thirds supermajority of members present necessary for a quorum. The law's passage has already resulted in an array of voting advocacy groups filing five lawsuits seeking to block its provisions—four in federal court (here, here, here, and here) and one in state court.
As we've previously detailed, the GOP's bills add criminal penalties to a wide range of voting activities and include measures that would:
- 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 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.
- Requires 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.
The new law prohibits voting methods such as 24-hour and drive-thru early voting that populous Democratic-run counties implemented last year to increase voting access during the pandemic—measures that were disproportionately used by voters of color. The various lawsuits argue that the law illegally discriminates against voters of color and voters with disabilities, but after the Supreme Court's right-wing majority significantly undermined the Voting Rights Act earlier this year, the cases likely face an uphill challenge in the conservative-dominated federal and state judiciaries.