10/08/2021

SCOTUS Returns and Senate Introduces Voting Bill

The U.S. Supreme Court’s term began on Monday returning in person this year after more than a year and a half of remote arguments. This term’s docket has crucially important cases on abortion, gun rights and the Second Amendment, the relationship between church and state, “state secrets privilege” and more.

On Tuesday afternoon, Senate Democrats introduced the John Lewis Voting Rights Advancement Act, Senate Bill 4, over a month after the U.S. House of Representatives passed its own version of the legislation. “The most fitting way to honor the legacy of John Lewis is to take action ourselves,” said Sen. Patrick Leahy (D-Vt.) on the Senate floor as he introduced the bill. S. 4 establishes a new formula to determine which jurisdictions are subject to preclearance under Section 5 of the VRA, a provision that ensures federal oversight of states or counties with histories of discriminatory voting laws. The old formula to determine which jurisdictions require pre-approval was struck down in 2013 by the U.S. Supreme Court. The bill also strengthens Section 2 of the VRA, in light of the Supreme Court’s ruling in Brnovich v. DNC earlier this summer.

The bill introduced on Tuesday contains noticeable changes from H.R. 4, the bill that passed the House. The Senate’s preclearance formula and requirements are slightly different to those in H.R. 4. Additionally, S.4 now includes the Native American Voting Rights Act, introduced in August by Sen. Ben Ray Luján (D-N.M.) who spoke yesterday of the “geographic, linguistic and legal barriers” Native American voters face. S.4 also includes the Election Worker and Polling Place Protection Act, introduced by Sen. Jon Ossoff (D-Ga.), which strengthens the legal protections for poll workers and their families against harassment. If you want a refresher on the subject of election protection, Marc wrote about the need to defend election workers a few months ago.

For help understanding S.4, we suggest reading the section by section analysis provided by Sen. Leahy’s office here. On Tuesday, Senate Majority Leader Chuck Schumer (D-N.Y.) indicated his plan for the Senate to hold a vote on S. 4 “in the coming weeks,” calling S.4 a complement to the Freedom to Vote Act, S.2747, which also awaits a vote in the Senate.

A Tale of Two Countries — New Bills to Restrict Voting in Texas and Michigan While Massachusetts Expands Access

Texas — On Monday night, the Texas Senate State Affairs Committee advanced Senate Bill 9, a new bill to make certain types of illegal voting a felony, roughly a month after the Texas omnibus voter suppression bill reduced the penalty. In late August, a House amendment to Senate Bill 1 made illegal voting a Class A misdemeanor; S.B. 9 restores the penalty to a second-degree felony. The maximum punishment for a second-degree felony is 20 years in prison, compared to one year for a Class A misdemeanor. A Texas woman named Crystal Mason was sentenced to five years in prison for casting a provisional ballot while on parole, a high profile example of the type of election crimes, often committed unknowingly, covered by this law. Last Thursday, Gov. Greg Abbott (R) added the topic as a new agenda item for the Legislature’s current special session. House Speaker Dade Phelan (R) rejected the request, releasing a statement that S.B. 1 was adopted with “several thoughtful amendments” and that his chamber will remain focused on redistricting. Last Friday, the Senate moved forward with Gov. Abbott’s request with Sen. Bryan Hughes (R) introducing S.B. 9.

Michigan — The Republican-controlled Michigan Senate passed Senate Bill 303 on a party-line vote on Wednesday, a bill that would add stricter voter ID requirements and ban election officials from proactively sending absentee ballots without a request from the voter. To vote in person under current law, voters may sign an affidavit if they do not have an ID. In contrast, the new bill requires an ID for in-person voting and adds ID requirements to cast an absentee ballot as well. The bill goes next to the Republican-controlled House before heading to the desk of Gov. Gretchen Whitmer (D) who is expected to veto the bill. The ID provision mirrors a GOP-backed petition initiative that was approved last week to begin collecting signatures. If the petition gathers enough signatures and heads to the Legislature, the law can be enacted without the approval of Gov. Whitmer.

Massachusetts — On Wednesday, the Massachusetts Senate passed an election reform bill, Senate Bill 2545, known as the VOTES Act, which takes multiple steps to expand voter access. S.2545 codifies popular reforms that increased voting opportunities during the 2020 election, such as no-excuse vote by mail and expanded early-voting periods. S.2545 adopts same-day registration and includes jail-based voting provisions, adding requirements to ensure that eligible, incarcerated voters (those serving misdemeanor convictions or being held pre-trial) have meaningful access to the ballot. The bill also requires Secretary of the Commonwealth William Galvin (D) to join the Electronic Registration Information Center (ERIC), improve his office’s online application portal and streamline some aspects of the automatic voter registration process, a reform adopted in 2018. The bill passed on a 36-3 party-line vote in the Senate and now heads to the House, which also has a Democratic supermajority. If approved by the House, the Democratic-controlled Legislature can comfortably override any gubernatorial veto.

AND MORE:

• Last Friday, civil and voting rights organizations announced that they had reached an agreement with Kansas to expand voter registration opportunities at two statewide agencies: the Kansas Department of Health and Environment and the Kansas Department for Children and Families. This victory for Kansas voters originates from November 2019 when civil and voting rights organizations approached the state regarding its alleged noncompliance with the National Voter Registration Act (NVRA), which sets guidelines for state government agencies that provide public assistance to also provide voter registration assistance.

Redistricting Details: Prison Gerrymandering and Impasse Litigation

Indiana — On Monday, Gov. Eric Holcomb (R) signed the state’s congressional and state legislative maps into law after they were approved by the Indiana General Assembly last Friday. No Democrats in either chamber voted in favor of the maps. During the final public hearing, the plans were criticized as Republican gerrymanders. Notably, on the state Senate map, Fort Wayne is divided into four districts with more rural areas, increasing Republican influence in those districts. The cities of Evansville, Lafayette and West Lafayette were similarly split, raising concerns that the approved maps will dilute the power of minority voters. Democrats’ proposals to keep urban areas intact were unanimously rejected by Senate Republicans. The approved congressional map will likely ensure that Republicans maintain the seven of nine U.S House seats they currently hold in Washington D.C.

Colorado — In the 2018 elections, Colorado voters approved amendments to the state constitution to reform the state’s redistricting process. However, a state that went for President Biden by a double-digit margin could send an evenly split congressional delegation to Washington. Read our latest, “Redistricting Rundown: Colorado,” to learn about the maps approved last week by Colorado’s new redistricting commission, how they prioritize competitiveness at the expense of Latino representation and what that reveals about the limitation of commissions to solve every single redistricting dilemma.

AND MORE:

• Iowa’s GOP-controlled Legislature rejected the first set of maps drawn by the state’s nonpartisan Legislative Services Agency. Eric Holder, Chairman of the National Democratic Redistricting Committee (NRDC), decried the move and warned that if the Legislature rejected a second set of maps, “it would be an unprecedented move that could lead to the destruction of a nonpartisan redistricting process that has served as an example to the rest of the country for decades.”
• The GOP-controlled Arkansas Legislature approved a congressional map that splits heavily Democratic Pulaski County, home to Little Rock, among three different districts to dilute the influence of minority voters. Despite objections from prominent Texas Democrats, the Lone Star State's congressional map is expected to head to the Senate floor for a vote today. Montana has narrowed its congressional maps to nine options; Hawaii, West Virginia and several other states with two congressional seats share the same task of dividing their states in half.
• A crucial component of map drawing is ensuring that each person’s vote carries the same weight as another’s — a principle known as one person, one vote. However, in Monday’s Explainer, “Prison Gerrymandering Explained,” we provide an overview of how the practice of counting individuals where they are incarcerated, rather than where they call home actively works against the notion of equal representation.
• In some states, such as Wisconsin, we have seen redistricting legal challenges before new maps have even been drawn. So, how can a state be sued over maps that don’t exist yet? What’s going on in Wisconsin is a special type of redistricting litigation called impasse litigation. In the Explainer, “Impasse Litigation: When Politicians Can’t Agree on New Maps,” we walk through what it is, where we might see it this redistricting cycle and what the courts can do in these cases.

Three things to do today to stay engaged in the fight!

We're listening: Next time you’re on a walk or doing chores, you could be learning about some of the biggest challenges facing our country. Check out Defending our Democracy on Spotify, a new playlist curated by Stacey Abrams that showcases her favorite episodes on protecting democracy and our freedom to vote.

We’re taking action: This week, we wrote about prison gerrymandering in “Prison Gerrymandering Explained.” 11 states currently ban this unjust practice and momentum is building across the country — learn how you can take action in your own community here.

We’re reading: This week, Snapchat released Run for Office, a new feature on their social media app to help their users, who skew younger, find local races and learn about how to run for office. Read more about the new tool here and visit the organization Run for Something if you’re a young person curious about how you — yes, you — can make a difference in your community through elected office.

Protect Montana’s Youth Vote

In this week's Spotlight, Scout McMahon, Kiersten Iwai and Liz Albers write about three of Montana’s recently enacted laws that disproportionately burden young voters. The authors are leaders from Montana Youth Action, Forward Montana Foundation and Montana Public Research Interest Group (MontPIRG), respectively, groups that have sued the state over the constitutionality of the laws. McMahon, Iwai and Albers outline the content of these three laws and illustrate how they are discriminatory and counterproductive, especially for younger voters. “Voter suppression laws burden everyone. But laws that target our generation jeopardize our future,” the authors write in “Protect Montana’s Youth Vote.”

Each week, we pick a few reader questions about all things elections and share Marc’s answers. Got a question? Submit it here!

Katy asks: We need to turn Florida blue. Is it possible?

Marc: Yes! Democrats lost the Senate race in the last midterm election (2018) by a mere 0.1% after a recount, and Val Demmings is a great candidate. We need to ensure Florida has fair voting rules, and we need to organize effectively and get people to the polls.

Glenda asks: With the Supreme Court designating partisan gerrymandering beyond the reach of federal courts, is there still a legal case to be made for gerrymandering that is claimed to be partisan but has the effect of diluting minority representation, as the Texas redistricting is doing?

Marc: I expect the Texas maps to be challenged in court on a variety of grounds including racial gerrymandering and violations of the Voting Rights Act.

“The legal profession needs to ensure that the next time a president tries to steal an election or incite an insurrection, it speaks with one voice: in opposition.” The Washington Post

“Rather than create more Republican congressional districts, the Texas legislature chose to bolster incumbents with even safer districts; there are far fewer toss-up or competitive districts in the proposed map, dealing a blow to any Democratic hopes of flipping a competitive seat or two in Texas during the 2022 midterm elections, and risking deeper polarization through pumped-up primaries.” The New York Times

“We’re talking about the 2022 gubernatorial races in Wisconsin, Pennsylvania and Michigan. The New York Times reports that Democrats are quietly worried about these races, in part because GOP governors in those states will be able to dramatically ramp up the anti-democratic tactics… In these states, Republicans are pushing various efforts to “audit” or “recount” the 2020 voting, which should be seen as dry runs for manufacturing pretexts for subverting future outcomes.” The Washington Post