02/04/2022
This Law from 1877 Determines How Votes Are Counted
This week, a trio of senators from the Democratic caucus released a “discussion draft” of the Electoral Count Modernization Act, the legislative update to the Electoral Count Act of 1887 (ECA). Here’s what you need to know about the ECA:
- It was created after the disputed 1876 presidential election.
- It outlines what happens after Election Day (learn more about election certification here).
- After congressional Republicans made unprecedented objections to election results last January, the archaic law has received renewed attention.
“We recognize that updating the Electoral Count Act is not a substitute for confronting the wider crises facing our democracy,” wrote the senators, noting the concern of many activist groups. Nonetheless, the Electoral Count Modernization Act would provide a much-needed update to the 1887 law, clarifying the rules for election certification and the role of the vice president.
There’s been a fierce debate among Democrats on how to approach ECA reform, and recent reporting has indicated that there is Republican interest in working on the bill.
On Thursday, we recognized the 151st anniversary of the 15th Amendment to the U.S. Constitution — that the right to vote cannot be denied “on account of race, color, or previous condition of servitude.”
Democrats Make Up Ground In New York
New York
Over the weekend, New York Democrats revealed their proposed congressional map after redistricting responsibility shifted back into the hands of state lawmakers. The state Assembly and Senate passed the map on Wednesday and it was signed by Gov. Kathy Hochul (D) the following day. The approved map could give Democrats the opportunity to pick up three new seats, potentially giving Democrats 22 out of the state’s 26 congressional seats.
Here’s a not-so-fun fact for the Empire State: If 89 more residents had responded to the census, New York would have held on to its 27th seat in Congress.
AND MORE:
- This past Friday, the Hawaii Reapportionment Commission adopted legislative and congressional maps after being one of the first states to publish proposals last September.
- In contrast, Louisiana is the 50th and final state to begin redistricting, releasing new proposed plans this week. However, the Republican Legislature and Democratic governor are expected to deadlock, which would hand over map-drawing responsibility to the court. On Wednesday, an impasse litigation case filed in anticipation of the partisan gridlock was dismissed for being filed in the wrong venue.
Texas County Agrees to Halt Voter Removal Program
Texas
Last fall, the elections administrator for Cameron County, Texas sent 245 notice letters to registered voters it believed may not be U.S. citizens, informing them that they had 30 days to provide proof of citizenship or else their registration would be canceled.
- In December, Voto Latino sent a letter to Cameron County, threatening to bring a lawsuit and informing them that this practice violated the National Voter Registration Act, which prohibits voter removal within 90 days of a federal election, and “wrongfully threatens to call into question the lawful status of hundreds of U.S. citizens who are properly registered to vote.”
- Cameron County responded on Jan. 13, stating that the county stopped sending notice letters and did not suspend or cancel any registrations related to earlier letters.
North Carolina
On Wednesday, the North Carolina Supreme Court heard oral arguments regarding the constitutionality of the state’s maps after an earlier appeal. The arguments focused largely on what amount of partisan gerrymandering, if permissible at all, is allowed under the North Carolina Constitution. The plaintiffs-appellants (the parties who appealed the lower court’s decision) argued that partisan gerrymandering explicitly violates the state constitution and its premise of “free and fair elections.”
In response, the lawyers representing the Republican defendants-appellees (the parties who want the trial court’s decision to remain) argued that “the General Assembly is allowed to draw districts for partisan advantage” and that there is no clear standard “between what partisan intent and lean is allowed and what partisan intent and lean is not allowed.” You can watch this space for more updates regarding this case.
Alabama
The state of Alabama is before the U.S. Supreme Court after a district court blocked the state’s current congressional map and ordered the creation of a new map with two majority-Black districts last week. The Alabama secretary of state, supported by various Republican groups and officials, wants the court to allow the current congressional map — which only has one majority-Black district — to be used in future elections while the cases are appealed. The emergency applications have been fully briefed by both sides and are awaiting action by Justice Clarence Thomas, the justice in charge of emergency motions from this region.
AND MORE:
- ICYMI, within the past week there have been crucial case updates on Pennsylvania’s vote by mail law and Georgia’s redistricting maps. Additionally, the first full trial for a voter suppression law passed in the wake of the 2020 election began this week in Florida.
- A lawsuit was filed against Michigan's House of Representatives map, arguing that the map gives a partisan advantage to the Republican Party that will “tilt State House elections toward Republican control of the Legislature for the next decade.”
- The Pennsylvania Supreme Court will take over congressional redistricting after state lawmakers failed to enact a map. The court-appointed special master will recommend a redistricting plan and a revised election calendar by Feb. 7.
- On Thursday, the New Jersey Supreme Court dismissed a Republican lawsuit challenging the state's new congressional map. The court found that the plaintiffs' grievances with the redistricting commission chair's conduct did not qualify as a reason to sue over the map.
Are Primaries the Problem? Understanding Polarization and Election Reform
Our latest Data Dive, in conversation with political scientist Lee Drutman. Read more ➡️
What is your takeaway from the failed 2021 ballot measures in New York that would have expanded voter access? Why did they fail in such a blue state?
I think that the New York ballot measures failed because Democrats largely took it for granted that they would pass. In retrospect, it is clear that there was a lot more energy and resources on the Republican side to defeat the initiatives than there was by progressives to pass it. This connects to a wider theme — Democrats have too often scattered their attention on numerous issues, while Republicans are laser-focused on undermining our democracy.
...
Are you looking at proposed legislation targeting student voters in states like New Hampshire?
Yes. When we talk about voter suppression, I often focus on laws that disproportionately impact Black, Latino or young voters. The inclusion of young voters is not by accident — the 26th Amendment prevents discrimination based on age. New Hampshire has a particular history of targeting young voters because students make up over 10% of the eligible voting population, the highest percentage in the country. We are following proposed New Hampshire laws closely and will sue if necessary.
Thanks to Peter and Santiago for asking questions this week – feel free to ask your own here
We’re listening to podcasts this week. Why not learn about Justice Breyer's legacy and the upcoming confirmation process while running errands?
Or, how about Run for Something’s Amanda Litman on the Ezra Klein Show?
And as always, Georgia’s on our mind. We’re reading Ari Berman and Ryan Little’s investigation on the devastating impact of high ballot rejection rates in the Peach State. The Guardian reminds us to not overlook stories at the hyper-local level. And what would happen if a governor, such as Georgia gubernatorial candidate David Perdue (R), discarded a valid slate of presidential electors?
