On the Docket 03/31/2023

Spring has sprung — and springing up with it are more Republican attacks on voting rights. From more restrictive bills, movements to hand count ballots and attempts to reinstate felony disenfranchisement practices, we’ll break down everything you need to know this week.

Throughout March, we’ve also taken note of the growing Republican movement to leave ERIC, a data sharing organization that helps states maintain accurate voter rolls. Today, we’re taking a deep dive into what exactly ERIC is and why Republicans are so upset with it.

Everything You Need To Know About ERIC

Back in January 2022, Louisiana withdrew from the Electronic Registration Information Center (ERIC), a bipartisan nonprofit that allows states to share information to help maintain accurate voter rolls. While Louisiana was the first red state to leave ERIC, it wouldn’t be the last. Alabama followed suit earlier this year, and soon Florida, Iowa, Missouri, Ohio and West Virginia were heading for the exit, too. Meanwhile, both North Carolina and Texas have also taken steps to leave the voter roll organization.

But what exactly is ERIC? And why are Republicans so upset about it?

Let’s start with the first question, which begins with the problem of voter list maintenance. States need to periodically update their voter rolls to remove old registrations. But the United States doesn’t have a database of registered voters or a national ID system, so there’s no easy way to identify voters who have moved, died or otherwise have become ineligible. [link removed]

In 2012, seven red and blue states created ERIC as a way to solve this problem by sharing information amongst themselves to update voter rolls. By 2023, that number had grown to 32 states plus Washington, D.C. Every 60 days, member states submit voter registration and DMV data, which ERIC uses to generate four different list maintenance reports:

Cross-State Movers Report: voters who have moved from one ERIC state to another ERIC state.

In-State Movers Report: voters who have moved within the same state.

Duplicate Report: voters with duplicate registrations within the same state.

Deceased Report: voters who have died.

Member states use these reports to identify old or out-dated registrations and remove them. ERIC itself is never connected to any state’s voter registration system and states retain complete control of their voter rolls.

ERIC also generates three other reports that member states can use, including one that identifies individuals who appear to be eligible but are not yet registered to vote and one designed to identify the extremely rare incidences of voter fraud.

So that’s what ERIC is and what it does. But why are Republicans so upset with it?

Like many of the pathologies of the modern day GOP, discontent with ERIC can be traced back to right-wing conspiracy theories and complaints about election administration. Some claim it’s a left-wing voter fraud front funded by George Soros. Other Republicans point to vague privacy concerns (even though ERIC has never had a data breach), the required outreach to eligible voters, a “hyper-partisan” non-voting board member and assertions that ERIC does not do enough to identify voter fraud. Given the laser focus of Republicans on “election integrity” these days — and the desire among Republican officials to prove their conservative bona fides — more red states could follow their peers to the exit.

As Marc laid out recently in his piece “A Run on Democracy,” the movement to leave ERIC is also hypocritical. Multiple Republicans are on record praising ERIC as an important tool to combat voter fraud, the very thing they claim to care about the most when it comes to elections. But now that ERIC has become a target of right-wing paranoia, they’re turning on it. It seems that even combating voter fraud takes second fiddle to the conspiratorial whims of the Republican base. [link removed]

OPINION: Rural Democrats Need More Attention, and the Proof Is in Wisconsin

By Lauren Gepford, managing director of Contest Every Race and former executive director of the Missouri Democratic Party. Read more ➡️ [link removed]

New Mexico’s Voting Rights Act Becomes Law

On Thursday, March 30, New Mexico Gov. Michelle Lujan Grisham (D) signed House Bill 4, the New Mexico Voting Rights Act into law. The bill makes New Mexico among the first states to enact an omnibus pro-voting law during the 2023 legislative session. Minnesota passed its own package of voting reforms too. [link removed]

The law makes several key changes to voting in the Land of Enchantment. H.B. 4
Restores voting rights to upwards of 11,000 formerly incarcerated New Mexicans,
Establishes automatic voter registration,
Creates a permanent mail-in ballot list and expands the use of drop boxes and
Enacts the Native American Voting Rights Act, a measure designed to enhance the voting rights of Native voters.

We spend a lot of time at Democracy Docket focusing on bad voting laws, so it’s always a treat to bring you news of real progress that will benefit voters.

Virginia Takes a Step Backwards on Felony Disenfranchisement

While New Mexico is making progress on felony disenfranchisement, Virginia is headed in the wrong direction. Last week, Virginia Gov. Glenn Youngkin’s (R) secretary of the commonwealth sent a letter to state lawmakers outlining the administration’s plan to pause automatic voting rights restoration for individuals with felony convictions. Now, rights will be restored only on a case-by-case basis, a policy that dates back to 1902 and was originally adopted to disenfranchise Black Virginians. The letter did not elaborate on which criteria Youngkin will use to assess each application, making it unclear which and how many Virginians can expect to have their rights restored at some point. [link removed]

Youngkin’s new policy is a sharp departure from his predecessors. Virginia’s constitution permanently disenfranchises people with felony convictions unless their rights are restored by the governor. Each of the state’s previous three governors had used their executive power to roll back felony disenfranchisement in Virginia.

In 2013, Gov. Bob McDonnell (R) announced that he would restore the voting rights of individuals convicted of nonviolent felonies after they complete their sentences.

His successor, Gov. Terry McAuliffe (D), issued a blanket order in 2016 that restored voting rights to Virginians once they completed their sentences. After the state Supreme Court invalidated this blanket order, McAuliffe began issuing individual orders to each person.

Gov. Ralph Northam (D) continued the policy of his predecessor and in 2021 scrapped the requirement that individuals complete their full sentences, including any parole or probation. Instead, voting rights were restored upon release from prison.

Under the policies implemented by these three governors, an estimated 300,000 Virginians regained voting rights.

Also in 2021, the Virginia General Assembly passed a resolution to amend the state constitution to automatically restore voting rights to individuals upon their release from prison. However, proposed amendments in Virginia have to pass two consecutive sessions and the proposal died in a state House committee in 2022 after Republicans won control of the state House.

With Youngkin’s new policy, rights restoration is facing an even bigger setback. Virginia is now the only state where someone convicted of any felony is presumed to be barred from voting for life. Iowa and Kentucky, states with similar lifetime prohibitions, both have executive orders in place that automatically restore at least some people’s rights upon completion of their sentences. The contrast is especially stark when you consider all of the bills introduced this year to restore voting rights. Just this month, in addition to New Mexico, Gov. Tim Walz (D-Minn.) signed a bill restoring voting rights to 50,000 people. Youngkin’s Virginia truly stands alone on this issue. [link removed]

Is Shasta County the New Cochise County?

Back in 2022, we caught wind of a small county in Arizona that wanted to count all of its ballots by hand in the 2022 midterm elections. Little did we know how much attention we’d spend covering Cochise County, as Republican officials tried repeatedly to hand count ballots and delay certification despite lawsuit after lawsuit seeking to force the county to comply with state law. [link removed]

Now, it looks like a northern California county wants to follow in Cochise County’s footsteps. On Tuesday, March 28, the Shasta County Board of Supervisors voted 3-2 to hand count all ballots during the county’s next election. The board took this action despite warnings from both California Attorney General Rob Bonta (D) and the country registrar. [link removed]

Like Cochise County, Shasta County’s decision to hand count ballots is rooted in conspiracy theories about electronic voting machines, particularly those manufactured by Dominion Voting Systems. In 2020, former President Donald Trump and his followers popularized unfounded allegations about the accuracy of voting machines (the claims have led to an ongoing defamation lawsuit filed by Dominion against Fox News).

It’s not just small counties trying to make the switch to hand counting: Republican legislators across the country have introduced bills attacking voting machines and instating hand counting. Conservative groups have also filed lawsuits targeting voting machines in several states.

Based on these theories, Shasta County canceled its contract with Dominion on Jan. 24, forcing the county to adopt a new plan to count votes by May 9 in order to comply with state law. In the lead up to Tuesday’s vote, the county registrar urged the county to either renew its contract with Dominion or enter into a contract with another vendor, as hand counting ballots is “error prime, complex, and resource intensive.” The registrar also warned that conducting a full hand count in the county would require “at a minimum…$1,651,209.68 and 1300 staff members.” Bonta, meanwhile, informed the county that California and federal law require electronic voting systems. Yet despite these warnings, the board went ahead with their plan to hand count, likely egged on by election denier and illustrious pillow salesman Mike Lindell. [link removed]

Shasta County’s next election isn’t until the May 2024 presidential primary, so we have a long way to go before we know if its plan to hand count ballots succeeds. But if the past (and Cochise County) is prologue, it will be a long and litigious road to get there.

SCOTUS Declines Review of Kansas’ Congressional Map

In Monday’s order list, the U.S. Supreme Court declined to review a petition claiming that the Kansas Supreme Court used the wrong legal standards to assess Kansas' congressional map. [link removed]

The petitioners claimed that the Kansas Supreme Court erroneously conflated two separate redistricting claims: the 14th Amendment and Section 2 of the Voting Rights Act (VRA). Remember, the 14th Amendment prohibits intentional racial discrimination in redistricting while Section 2 of the VRA prohibits redistricting decisions that have the effect of racial discrimination; it's not necessary to prove lawmakers' intent.

The distinction between the principles is important as different tests and precedents govern the claims brought under these laws. The original lawsuit argued that the congressional map unfairly broke up voters of color in Kansas City and violated the equal protection guarantees of the Kansas Constitution.

The Kansas Supreme Court said that the equal protection guarantees of the Kansas Constitution are similar to the 14th Amendment of the U.S. Constitution, so the Kansas Supreme Court would use U.S. Supreme Court precedent regarding the 14th Amendment and racial gerrymandering to review the case.

The Kansas Supreme Court then upheld the map, saying that the lower courts did not properly consider Gingles factors when reviewing the case. However, Gingles is a results test used to determine racial vote dilution under the VRA, not an intent test under the 14th Amendment.

Since the Kansas Supreme Court used a VRA test when petitioners were bringing claims that should've been considered under the 14th Amendment, the petitioners asked the U.S. Supreme Court to review the decision. SCOTUS denied that request, leaving Kansas' congressional map in place.

Meanwhile, SCOTUS still has yet to issue opinions in Merrill v. Milligan or Moore v. Harper, the two landmark voting rights cases of the term. With both cases fully argued and briefed, the opinions could come on any day the Court decides to release opinions. Also, with briefing over jurisdictional questions in Moore complete, the Court could decide to dismiss the case at any time rather than issue a decision on the merits.

A Troubling Development in the 8th Circuit

At the beginning of the month, we wrote about what appears to be the conservative legal movement’s next target: private right of action, which allows individual voters and organizations to bring lawsuits against violations of civil rights laws. Without it, only the U.S. Department of Justice (DOJ) can bring lawsuits, which would make it harder to enforce statutes like the VRA or the Civil Rights Act. [link removed]

In February 2022, a federal judge appointed by Trump rejected decades of precedent and ruled that there is no private right of action under Section 2 of the VRA. Should the U.S. Supreme Court ever endorse this theory, most voting rights litigation under Section 2 would be endangered. This decision was appealed to the 8th U.S. Circuit Court of Appeals, which heard arguments in January 2023. [link removed]

Earlier this month, the 8th Circuit issued an order that paused proceedings in a case challenging an Arkansas law limiting voter assistance options that was brought by private plaintiffs pending the resolution of the private right of action appeal. The Arkansas case had already led to a pause in a separate voter assistance case from Missouri. A single judge’s novel ruling on the VRA has already impacted litigation in two other cases, and if the 8th Circuit upholds his ruling, it could get even worse. A decision finding there’s no private right of action could mean that only the DOJ could bring challenges in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. In such an event, the rights of voters in these states could be severely harmed.

For more about the importance of private right of action and the growing movement against it, listen to our podcast episode breaking it all down. [link removed]

More News

As always, we need to check in with defeated Arizona gubernatorial candidate Kari Lake. What’s new with her ongoing election denial efforts in court? The trial court rescinded its order from last Thursday asking for briefing about an ongoing signature matching claim. Instead, the court is pausing further proceedings until the Arizona Supreme Court deals with requests for sanctions against Lake and her attorneys. [link removed]

Legislation season continues in full swing across the country. Georgia’s Legislature is sending a bill to Gov. Brian Kemp (R) restricting the use of private grants to fund election administration, while Arkansas Gov. Sarah Huckabee Sanders (R) recently signed similar bans on private grants and drop boxes. Idaho’s Legislature sent new restrictions on voter registration to its governor too.

OPINION: To Protect Democracy in Red States, Look To Underutilized Tools

By Shanna Singh Hughey, an Emerson Collective fellow and founder of a voting rights think tank in Tennessee. Read more ➡️ [link removed]

What We’re Doing

Are you as excited as we are over the recent wins for rights restoration in Minnesota and New Mexico? Join the Restore the Vote Minnesota coalition for a conversation about the future of the franchise in the North Star State on Monday, April 3 at 6:30 p.m. CDT / 7:30 p.m. EDT. [link removed]

At Democracy Docket, we’re pretty cool — we even have a TikTok to prove it! Be sure to follow us and watch our latest post about ERIC. [link removed]

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Our podcast, Defending Democracy, is going on spring break for the next few weeks, so there's no new podcast episode today. It's the perfect time to catch up on our previous episodes. From election deniers in Arizona to the Wisconsin Supreme Court race, we've covered a lot of topics. Listen here. [link removed]


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