● Congress: With victories in Georgia's Senate runoffs, congressional Democrats now have the opportunity to pass the most important set of voting and election reforms since the historic Voting Rights Act was adopted in 1965. These reforms face a challenging path to passage given Democrats' narrow majorities, but their adoption is critical for preserving American democracy amid unprecedented attacks upon it by Republican extremists both in and outside Congress.
Chief among these proposals is the reintroduction of H.R. 1, the "For the People Act," which House Democrats passed in 2019 and would enact groundbreaking reforms by (1) removing barriers to expanding access to voting and securing the integrity of the vote; (2) establishing public financing in House elections to level the playing field; and (3) banning congressional gerrymandering by requiring that every state create a nonpartisan redistricting commission subject to nonpartisan redistricting criteria.
Democrats have also called for enacting a new Voting Rights Act, which the House passed in 2019 and subsequently named after the late Georgia Rep. John Lewis, a hero of the civil rights movement who died last year. Finally, House Speaker Nancy Pelosi has vowed to bring a bill to the floor to finally end the disenfranchisement of 700,000 Americans by making Washington, D.C. a state, which House Democrats also approved last year. We'll detail each of these major reforms below.
Pelosi has indicated that passing H.R. 1, symbolically named as the first bill of the session, will be a top priority for the new Congress. This bill would adopt the following reforms for federal elections:
- Establish automatic voter registration at an array of state agencies;
- Establish same-day voter registration;
- Allow online voter registration;
- Allow 16- and 17-year-olds to pre-register so they'll be on the rolls when they turn 18;
- Allow state colleges and universities to serve as registration agencies;
- Ban states from purging eligible voters' registration simply for infrequent voting;
- Establish two weeks of in-person early voting, including availability on Sundays and outside of normal business hours;
- Standardize hours within states for opening and closing polling places on Election Day, with exceptions to let cities set longer hours in municipal races;
- Require paper ballots filled by hand or machines that use them as official records and let voters verify their choices;
- Grant funds to states to upgrade their election security infrastructure;
- Provide prepaid postage on mail ballots;
- Allow voters to turn in their mail ballot in person if they choose;
- Allow voters to track their absentee mail ballots;
- Require states to establish nonpartisan redistricting commissions for congressional redistricting (likely not until 2030);
- End prison gerrymandering by counting prisoners at their last address (rather than where they're incarcerated) for the purposes of redistricting;
- End felony disenfranchisement for those on parole, probation, or post-sentence, and require such citizens to be supplied with registration forms and informed their voting rights have been restored;
- Provide public financing for House campaigns in the form of matching small donations at a six-for-one rate;
- Expand campaign finance disclosure requirements to mitigate Citizens United;
- Ban corporations from spending for campaign purposes unless the corporation has established a process for determining the political will of its shareholders; and
- Make it a crime to mislead voters with the intention of preventing them from voting.
The John Lewis Voting Rights Advancement Act, meanwhile, would restore the protections that the Supreme Court's conservatives eviscerated in an infamous 2013 decision. That ruling removed a requirement for a number of largely Southern states and localities with a pervasive history of racial discrimination to "preclear" all efforts to change voting laws and procedures with the Justice Department. The VRAA would establish new criteria for deciding which jurisdictions would fall under the preclearance requirement after the 2013 court ruling struck down the old formula.Campaign Action
Under the new setup, any state where officials have committed at least 15 voting rights violations over a 25-year period would be required to obtain preclearance for 10 years. If the state itself, rather than localities within the state, is responsible for the violations, it would take only 10 violations to place it under preclearance. In addition, any particular locality could individually be subjected to preclearance if it commits at least three violations.
Based on this formula, the VRAA would put 11 states back under preclearance: Alabama, California, Florida, Georgia, Louisiana, Mississippi, New York, North Carolina, South Carolina, Texas and Virginia. While most of these states are still in the South (and also under Republican control), the list also includes the two largest Democratic-leaning states in the country, California and New York.
Lastly, the bill to grant statehood to D.C. would shrink the federal District of Columbia down to a handful of important federal buildings surrounding the National Mall while admitting the rest of the district as a new state. All but one House Democrat (who is now no longer in Congress) voted for D.C. statehood last summer, and 46 of the 50 incoming members of the Democratic Senate caucus either sponsored last year's bill or have expressed public support, while the remaining four have yet to take a firm position.
While Democrats winning full control of Congress and the presidency makes it possible to pass the above reforms, their success is far from guaranteed. For starters, Democrats would need unanimous support in the Senate and near-unanimous backing in the House given that every Republican is likely to oppose these reforms.
The most important hurdle, however, is the legislative filibuster, and the fate of these reforms will depend on Senate Democrats either abolishing or curtailing it. Progressive activists have relaunched a movement to eliminate the filibuster entirely following the Georgia victories, while some experts have suggested that Democrats could carve out an exception for voting rights legislation. Either way, Democrats will need to address the filibuster in some fashion, since Senate Republicans have made it clear they will not provide the support necessary to reach a 60-vote supermajority on any of these measures.
● Connecticut: Democratic Secretary of State Denise Merrill and legislative Democrats are pushing to pass a series of voting reforms, including the adoption of no-excuse absentee voting, early voting, and automatic voter registration. Last year, lawmakers passed a statute to temporarily expand the definition of illness to allow all voters to cast absentee ballots without needing a specific excuse, and Democrats are considering passing similar legislation this year for upcoming local and special elections with the pandemic still ongoing.
Democrats may also try to permanently remove the excuse requirement by passing a constitutional amendment, as well as once again approving an amendment they passed in 2019 to allow up to three days of early voting. Unless the GOP has a change of heart and supplies enough votes for a three-fourths supermajority, amendments must pass in two sessions with an election in between before going to a voter referendum.
● Delaware: Democratic lawmakers in Delaware have introduced two constitutional amendments to expand voting rights: The first would remove the excuse requirement to vote absentee by mail while the second would enable same-day voter registration. Last year, the state temporarily waived the excuse requirement due to the coronavirus pandemic.
Amendments in Delaware must pass the legislature with two-thirds supermajorities in two consecutive sessions, so lawmakers could enact the no-excuse absentee voting amendment this session since they passed it the first time in 2020. (The same-day registration amendment could not go into effect until the 2024 elections at the earliest.) However, since Democrats are just shy of the two-thirds mark in the state House, they will need at least two GOP votes in support. Uniquely among the 50 states, Delaware does not require constitutional amendments to be approved by voters.
● District of Columbia: In late November, the Democratic-run Washington, D.C. Council advanced a bill to make permanent a measure temporarily adopted in 2020 that let voters cast ballots at any "vote center" citywide in 2020 instead of just their local polling place. Democratic Mayor Muriel Bowser has yet to sign the bill, which also requires a polling place at the city jail, into law.
● Hawaii: Hawaii election chief Scott Nago plans to ask the Democratic-dominated legislature to pass legislation giving voters more time to complete their ballots and to expand the number of in-person "vote centers," where any voter in a county can cast their ballot, to better accommodate voters who can't readily vote by mail or don't want to.
Additionally, voting rights advocates have announced that they will renew their push to ask lawmakers to adopt a bill enacting automatic voter registration through the state's driver's licensing agency and potentially other state agencies, too. The state Senate and House each passed separate bills to adopt automatic registration in 2019, but the proposal failed to become law after the two chambers couldn't agree on a single version.
● Illinois: State House Democrats have passed legislation in committee that would make permanent some of the reforms lawmakers adopted in 2020 due to the pandemic, including: counting absentee mail ballots without postage; allowing officials to set up drop boxes for mail ballots; and continuing curbside voting for mobility-limited voters. However, the bill wouldn't extend the practice of sending applications for mail ballots to all voters who have cast ballots in recent election years.
● Louisiana: Republican Secretary of State Kyle Ardoin has proposed an emergency voting plan for lawmakers to approve for upcoming local elections and the March 20 special elections for the 2nd and 5th Congressional Districts. Committees in the state Senate and House both advanced the proposal to their respective full chambers earlier this month.
The plan would let voters cast absentee ballots by mail if they are at higher risk for COVID-19, seeking a diagnosis for it, or are subject to a physician's isolation order or caring for someone under isolation. However, it would not waive the excuse requirement for all voters or expand the number of early voting days.
● Maine: Democratic Secretary of State Shenna Bellows, who was elevated to the post by Maine's state legislature last month, will push for lawmakers to adopt online voter registration and prepaid absentee ballot postage. Meanwhile, several Democratic legislators have introduced various bills to codify the use of drop boxes, implement a system for letting voters track their absentee ballots, and let absentee ballots be counted earlier.
● Maryland: Maryland Democrats have introduced legislation intended to strengthen voting access on college campuses, military bases, retirement homes, and other "large residential communities." Sites like these would be able to request an in-person voting location, and colleges would also be required to establish voter registration efforts on campus and give students an excused absence to vote if needed. The bill would let military service members register online using their identification smart cards issued by the Defense Department.
● New Jersey: Committees in both chambers of New Jersey's Democratic-run legislature have declined to advance a measure that would have adopted two weeks of early voting for this year's state-level general elections and some municipal races in May. The New Jersey Globe reported that it was unclear why the bill failed to move forward but also noted that legislative leaders have yet to reach an agreement on the specifics of early voting, including whether to extend it to primaries, despite supporting the idea in principle. Committees in both chambers also passed early voting bills last year, but they did not advance further in 2020.
● New York: The past three weeks have been a busy period for voting rights expansions in New York, beginning when Democratic Gov. Andrew Cuomo signed into law an automatic voter registration measure that will involve a variety of different state agencies. Democratic state senators also passed several other reforms this week, including measures to:
- Adopt same-day voter registration;
- Permanently remove the excuse requirement to vote absentee by mail after it was temporarily waived in 2020 due to the pandemic;
- Make absentee ballot drop boxes permanent;
- Allow officials to process and begin counting absentee ballots in advance of Election Day;
- Count ballots where voters' intent is unambiguous even if there are minor errors like stray marks;
- Create an online absentee ballot tracking system and establish clear deadlines so voters better understand when they will receive requested ballots;
- Enable online requests for absentee ballots; and
- Allow voters to request absentee ballots earlier in advance of an election.
The proposals to enact same-day registration and permanently remove the absentee excuse requirement are constitutional amendments that previously passed both legislative chambers in 2019 and must pass again before they can appear on this November's ballot, while the other measures are all statutory and can become law if the Assembly and Cuomo sign off on them.
● Oregon: Democratic Gov. Kate Brown has called for several voting reforms in her budget proposal to the Democratic legislature, including reinstituting same-day voter registration; counting mail ballots that are postmarked by Election Day instead of only those received by Election Day; increasing the number of mail ballot drop boxes; and expanding Oregon's automatic voter registration system from just the DMV to include other agencies.
Same-day voter registration would likely require lawmakers to put a constitutional amendment on the ballot thanks to an especially bizarre chapter in state history. Oregon previously offered same-day registration, but lawmakers amended the constitution to repeal it in 1986 after a religious cult called the Rajneeshees attempted large-scale voter fraud in concert with biological warfare that left hundreds of residents poisoned in their unsuccessful plot to take over rural Wasco County's commission in 1984. However, 21 states and D.C. use same-day registration today without problems.
● Vermont: Both chambers of Vermont's Democratic-run legislature have passed a bill that lets municipalities decide whether to mail every active registered voter a ballot for the upcoming March 2 "Town Meeting Day" or let them postpone the elections to the spring if needed due to the pandemic. Town meetings are a form of direct democracy unique to New England, during which localities can hold public votes on budgetary and other matters.
- A constitutional amendment to automatically restore voting rights for people with felony convictions upon completion of all terms of their sentence, which is currently only in effect due to executive orders by Democratic governors that a future Republican governor could reverse;
- An amendment to entirely abolish felony disenfranchisement, which would go further than the competing proposal above;
- Companion Senate and House bills to add Virginia's 13 Electoral College votes to the National Popular Vote Interstate Compact, which Democrats postponed consideration of last year;
- A bill to repeal the witness requirement for absentee mail ballots, which most states don't require;
- A bill to permanently authorize absentee ballot drop boxes after their temporary adoption in 2020; and
- A bill to require localities to count absentee ballots in a uniform manner and time frame statewide.
Democrats have full control of state government, but constitutional amendments must pass both legislative chambers in two consecutive sessions with a state election taking place in between before going to a voter referendum. The felony voter reforms, therefore, could not become law before 2022 at the soonest. While civil rights groups and progressive Democrats support the amendment that would outright abolish felony disenfranchisement, Democratic Gov. Ralph Northam backs the competing amendment that would keep those who are in prison, on parole, or on probation unable to vote.
● Georgia: Republican state House Speaker David Ralston says he is open to considering removing oversight of Georgia's elections from Secretary of State Brad Raffensperger's office, and Ralston claims he wouldn't need a constitutional amendment to do it.
Raffensperger recently incurred the ire of fellow Republicans after he refused to go along with Trump's illegal efforts to steal the 2020 presidential election in Georgia, prompting Raffensperger to release a recording of an incriminating phone call early this month during which Trump had pressured him to "find" 12,000 fake votes that would allow Trump to claim victory. The New York Times reported on Friday that state prosecutors are increasingly likely to open a formal criminal investigation into Trump over the incident.
Separately, Republican Gov. Brian Kemp has called for adding a voter ID requirement to absentee voting, which Republicans exempted when they initially adopted a voter ID law in the mid-2000s. Up until 2020, absentee voting was disproportionately used by elderly Republican voters, but the GOP's push for new voting restrictions on the practice comes after mail voting heavily favored Democrats, both in November and the Jan. 5 Senate runoffs.
Many Georgia Republicans also want to reinstate the requirement that voters present an excuse in order to request an absentee ballot, along with calling for banning mail ballot drop boxes and restricting who can send ballot applications to voters. Ralston, however, says he opposes eliminating excuse-free absentee voting.
● Kansas: The U.S. Supreme Court last month declined to take up Kansas Republicans' appeal of a 10th Circuit Court of Appeals ruling last year that had struck down a law requiring voters to provide documentary proof of citizenship in order to register to vote, effectively dooming the measure. The law was the signature legislative achievement of former Secretary of State Kris Kobach, a Republican who rose to national notoriety as the leader of Trump's bogus "voter fraud" commission.
By the time it was blocked in 2016, the Kansas law had led to one in seven new voter registrations being suspended for lack of documentation, affecting 30,000 would-be registrants in total—a group that was disproportionately young and Latino. The lower court that eventually struck down the law also eviscerated Kobach's credibility and seriously undermined his reputation even among Republicans.
Separately, Kobach's successor as secretary of state, fellow Republican Scott Schwab, reportedly won't implement a bipartisan 2019 voting reform until 2023. That law allows counties to replace traditional local polling places with countywide "vote centers" where any voter in a county may cast their ballot. A provision of the law requires it to first take effect for odd-year local elections before it can be implemented for even-year federal and state elections, so if Schwab's foot-dragging delays it past this year, it couldn't take full effect until 2023.
● North Carolina: The 4th Circuit Court of Appeals in December unanimously overturned a lower federal court ruling that had temporarily blocked a voter ID statute passed by North Carolina Republicans from taking effect last election cycle while the case proceeded on the merits. The appellate judges ruled that the lower court had "abused its discretion" by blocking the law.
The lower court had found that there were significant similarities between this law, which Republicans approved in a 2018 lame-duck session, and one they passed in 2013, which another federal court had struck down in 2016 for being part of a package of voting restrictions that they deemed had targeted Black voters "with almost surgical precision."
The 4th Circuit, however, held that the lower court had erred by not presuming that lawmakers had acted in "good faith" when passing the laws, despite the many times that Republican legislators have had their voting laws struck down in court for discrimination. The plaintiffs are in the process of filing a petition to ask the entire 4th Circuit to rehear their case over the preliminary injunction while the case proceeds on the merits.
However, even if they succeed at the 4th Circuit, there's a strong risk of the U.S. Supreme Court eventually reversing them, which is why voting rights advocates may have better odds of blocking the voter ID law in state court instead. Last year, in fact, a state court issued its own preliminary injunction that blocked the law for the November election, and that case is also still ongoing.
Unfortunately for voting advocates, though, the 2020 elections complicated their odds of success at the state level. Democrats suffered three close losses in last November's state Supreme Court elections, leaving them with a slim 4-3 advantage on the bench
The contest for control of the court and the narrowing of Democrats' majority may have implications not only for the voter ID dispute. It could also play a role in the resolution of ongoing litigation over a separate constitutional amendment that authorized the voter ID statute, as well as with cases over North Carolina's felony voter disenfranchisement law, and upcoming lawsuits over redistricting, where the court is the lone bulwark at the state level against renewed GOP gerrymandering.
● Texas: The U.S. Supreme Court's right-wing majority has refused to take up state Democrats' appeal in a lawsuit that sought to overturn a Republican-backed restriction that's used in Texas and several other red states to require that only voters under the age of 65 must have an excuse to vote absentee by mail. By refusing to take up the case, the high court left in place a 5th Circuit Court of Appeals ruling that upheld the Texas law in defiance of the 26th Amendment's ban on age discrimination by using logic that if applied to race would effectively result in the revival of Jim Crow voting laws.
Meanwhile, in the Texas state Senate, several GOP senators have introduced a bill that would ban the mailing of unsolicited absentee ballots applications. Populous Democratic-run counties such as Houston's Harris County sought to send applications to all voters in 2020 due to the pandemic, but Republicans convinced the GOP-dominated state Supreme Court to block them.
Existing Senate rules required 19 votes to bring bills to the floor, but after Republicans were reduced to just 18 seats following the November elections, they lowered that threshold for the third time in recent years so that they can overcome Democratic objections and pass new voting restrictions and gerrymanders.
● Post Office: One key consequence of Joe Biden's victory and Democrats winning the Senate is that Biden will be able to appoint members of his choosing to the U.S. Postal Service Board of Governors, who in turn could fire Donald Trump's postmaster general, Louis DeJoy, who was instrumental in Trump's attempt to sabotage mail voting last year. With Mitch McConnell unable to block him, Biden can now fill three vacancies on the nine-member board, which currently has four Republicans and two Democrats, thereby giving it a new Democratic majority that could sack DeJoy.
● Alabama: Federal District Judge Emily Marks, a Trump appointee, granted Republican defendants' motion for summary judgment in December in a lawsuit where the plaintiffs had sought to strike down a state law that serves as a de facto poll tax by requiring people with felony convictions who have served their sentences to also pay off any court fines and fees before regaining the right to vote. The plaintiffs say they are considering whether to appeal.
● Minnesota: The ACLU is now asking a state appellate court to overturn a lower court's dismissal last August of their lawsuit that sought to strike down Minnesota's ban on voting for people serving out parole or probation for a felony conviction. If the effort succeeds, only people who are currently incarcerated would remain unable to vote.
● Tennessee: Voting rights advocates have filed a federal lawsuit seeking to simplify Tennessee's cumbersome process for people with felony convictions who have completed their sentences to regain their voting rights. Plaintiffs in particular object to the GOP's de facto poll tax requirement that requires affected individuals to first pay off all court fines and fees, which they argue violates state law.
Redistricting and Reapportionment
● Illinois: Democratic legislators have passed a bill in both chambers that will end the practice of "prison gerrymandering" for state legislative redistricting, sending it to Democratic Gov. J.B. Pritzker. The bill would count incarcerated people for redistricting purposes at their last known address instead of where they are imprisoned.
● Iowa: The liberal blog Bleeding Heartland reports that top-ranking GOP state legislators won't rule out using their power to implement gerrymanders by amending the maps submitted to lawmakers by Iowa's nonpartisan redistricting agency. Republicans are in a position to do so because they hold unified control of state government in a redistricting year for the first time since the 1980s, when the nonpartisan agency first came into place.
● Maryland: Republican Gov. Larry Hogan has issued an executive order to create an advisory commission that will propose new congressional and legislative maps for the upcoming round of redistricting. The nine commissioners will include three Democrats, three Republicans, and three independents, three of whom will be chosen by Hogan while the other six will be ordinary citizens who can apply here.
Hogan has the power to submit legislative maps to the Democratic-run legislature at the start of the legislative session, but if Democrats pass their own maps within 45 days, Hogan can't veto them. The commission's congressional map, meanwhile, would be strictly advisory in nature. While Hogan could veto new congressional districts, Democrats have the numbers to override him. The commission's proposal could nevertheless influence a court in the event of litigation.
● New York: In addition to the voting access measures in our New York item above, Senate Democrats also passed a third constitutional amendment that would make it easier for Democrats to gerrymander new maps next year by lowering the threshold for overriding the state's new bipartisan redistricting commission from a two-thirds supermajority to just three-fifths. Democrats already passed this amendment in 2020, and it would also appear on the November ballot if Assembly Democrats again follow suit. However, it's possible that the lowered threshold won't even matter for the upcoming round of redistricting, since Senate Democrats gained a two-thirds supermajority in November.
The amendment also includes some nonpartisan redistricting reforms, including enshrining in the constitution an existing statutory ban on "prison gerrymandering"; freezing the number of state senators at 63; sharply limiting how cities can be split among Senate districts to prevent a repeated of the anti-urban gerrymandering that occurred when the GOP drew the lines after 2010; and authorizing state to conduct its own census if the federal count is tainted.
● Pennsylvania: State House Republicans have passed a constitutional amendment out of committee by a single vote that would effectively gerrymander the state Supreme Court and Pennsylvania's two intermediate appellate courts by ending statewide judicial elections and replacing them with elections based on districts that GOP legislators would draw.
This move comes as retaliation for the state Supreme Court's Democratic majority striking down the GOP's congressional gerrymander in 2018 and protecting voting rights in 2020. Republicans could place it on the May primary ballot if it passes in both chambers for the second required time after the GOP approved the amendment in 2020.
● 2020 Census: The Trump administration has confirmed in federal court amid ongoing litigation that it will not release key data needed for Donald Trump to implement his attempt to unconstitutionally remove undocumented immigrants from the 2020 census population counts that will be used to reapportion congressional seats and Electoral College votes among the states. The Census Bureau said that it had in fact stopped work on producing those counts altogether.
Instead, the bureau won't compile that data until at least after Biden is sworn in, meaning the incoming president will have a chance to reverse Trump's memo ordering its production and release. The U.S. Supreme Court in December had overturned one of the three lower federal court rulings that had blocked Trump's executive memo, holding that it wasn't yet ripe for adjudication, but the delays will likely moot that litigation.
In addition to the postponed release of reapportionment data, the more granular data needed to conduct actual redistricting itself will likely be delayed past the existing March 31 deadline set by federal law. That could in turn cause several states to delay or even entirely postpone redistricting for elections taking place this year. Some states, however, have deadlines for redistricting written into their constitutions, meaning that late-arriving data could cause unpredictable legal havoc.
● Electoral College: Republicans in three key states have proposed altering how their states allocate Electoral College votes in different ways that would have each given Donald Trump more electoral votes in 2020. It's unclear whether these plans have widespread GOP support, and two of them face long odds of passage, but they're by no means the first time that Republicans have floated efforts to manipulate the Electoral College for short-term partisan advantage, and they raise the specter that the GOP will one day go through with it.
In Michigan, GOP Congressman Bill Huizenga called for switching his state from winner-take-all to allocating electoral votes by congressional district, which of course happens to be gerrymandered by the GOP in a way that would have resulted in an 8-8 split in 2020 despite Joe Biden winning the state (Michigan Democrats in fact did this very same scheme way back in the 1892 election cycle). Democratic Gov. Gretchen Whitmer could veto such a proposal if the GOP actually tries to pass it, but she faces a potentially competitive re-election contest in 2022 that could leave the GOP with full control of the state heading into the 2024 presidential election.
In Wisconsin, meanwhile, Republican state Rep. Gary Tauchen went further and actually introduced a bill that would similarly assign electoral votes by congressional districts that were gerrymandered by Republicans, a bill that would have given Trump a 6-4 majority in November even though Biden carried the state. As in Michigan, Democratic Gov. Tony Evers could veto the bill if the GOP were to make a serious push to pass it, but he could also be defeated next year, leaving Republicans with unfettered power.
Lastly, Republican state Sen. Julie Slama introduced a bill that would move Nebraska in the opposite direction by abolishing the allocation of electoral votes by congressional district after Joe Biden won the Omaha-based 2nd Congressional District and its lone electoral vote. Unlike in the other two states, Republicans already have full control over state government, but they narrowly lack a filibuster-proof two-thirds supermajority. However, the GOP could eliminate the filibuster rule with a simple majority.
These schemes may or may not work as intended and could even backfire on Republicans in the long term, especially if Wisconsin and Michigan one day turn reliably red. However, these proposals are all motivated solely by partisan self-interest rather than any good-faith concerns about the fairness of the Electoral College.
This is in fact the third straight election to which Republicans have reacted by putting forth plans to tilt the Electoral College in their favor, even though they benefited more from its skew in both 2016 and 2020 than in any elections in a century, according to one analysis.
Two-thirds of Republicans in the U.S. House and several in the Senate unsuccessfully voted last week to overturn Biden's Electoral College victory and steal the 2020 election for Trump mere hours after far-right insurrectionists incited by Trump ransacked the Capitol building itself. That followed an unsuccessful effort by Trump and his allies to agitate for disenfranchising countless voters by asking state legislatures to reject Biden's win and use their gerrymandered majorities to directly install a slate of Trump electors instead.
If the GOP entirely gives up on trying to win the popular vote and instead focuses exclusively on translating its minority support into an Electoral College majority, it's likely only a matter of time before Republicans successfully overturn a Democratic presidential victory, whether through a vote in Congress or state-level schemes to manipulate electoral vote allocation even when Democrats win the popular vote. Doing so risks sparking a far worse crisis than the one America has been living through this past month.
● Alaska: The Alaska Independence Party, a right-wing fringe party that advocates for the state to secede from the union, filed a lawsuit in state court last month seeking to overturn a statute enacted by voters at the ballot box in 2020 that replaces traditional party primaries with a "top-four" primary and instant-runoff general election. Republicans are considering whether to join the legal challenge.
● New York City, NY: A state court rejected issuing a temporary restraining order last month that would have blocked the use of instant-runoff voting ahead of an upcoming City Council special election after opponents of the new law, approved in 2019, filed a lawsuit in early December. The plaintiffs have announced that they will appeal, arguing that the law will lead to confusion that disenfranchises voters in communities of color unless changes are made, a charge that other candidates of color dispute.
● Pennsylvania: Democratic state Sen. Jim Brewster was finally seated by the Pennsylvania Senate's Republican majority after federal District Judge Nicholas Ranjan, a Trump appointee, upheld Brewster's narrow victory last year. Republicans sparked outrage after they had refused to let Brewster take the oath of office for another term even though election officials had certified his victory and the state Supreme Court had upheld it. GOP lawmakers even ejected Democratic Lt. Gov. John Fetterman from presiding over the chamber after he had objected to their power grab.
Republicans rejected the legitimacy of several hundred mail ballots that lacked a handwritten date on the outer envelope, even though the Supreme Court said they were otherwise valid and should be counted. Mail ballots favored Democrats by a lopsided margin thanks to Trump's demagoguery against mail voting, even though it was Republican lawmakers who pushed for a state law that, among other things, removed the excuse requirement to vote by mail in 2019.
This ordeal is an example of state-level Republicans following the lead of Trump and their congressional counterparts in trying to reject the outcome of elections after they've lost. Particularly worrisome for the rule of law is that the GOP refused to abide by the decisions of Democratic state Supreme Court justices and election officials and only capitulated after a Trump-appointed judge rejected their ploy.
The Daily Kos Elections Morning Digest is compiled by David Nir, Jeff Singer, Stephen Wolf, Carolyn Fiddler, and Matt Booker, with additional contributions from David Jarman, Steve Singiser, Daniel Donner, James Lambert, David Beard, and Arjun Jaikumar.
Public Service Announcement: If you haven't yet filled out the 2020 census, please do so by clicking here to do it online, by mail, or by phone. This way, census workers won't have to come to your door. The Census Bureau advises completing the census now even if you haven't received your 12-digit census ID by mail.
● VA-05, VA-07: Republicans in Virginia’s 5th and 7th Congressional Districts had planned to pick their nominees at April 25 party conventions, rather than in June's primary, but Republicans leaders are still deciding how to proceed in light of the coronavirus.
All of this uncertainty is causing plenty of angst in the 5th District, where freshman Rep. Denver Riggleman faces a challenge from the right from Campbell County Supervisor Bob Good. Riggleman even speculated to Roll Call that, if the process gets out of hand, Team Red won’t even have a nominee in this 53-42 Trump seat. National Republicans will also be keeping a close eye on the 7th District, where plenty of candidates are competing for the right to take on freshman Democratic Rep. Abigail Spanberger.Campaign Action
For now, the only things that anyone knows are that the April 25 conventions won’t be happening as planned, but that Republican voters in these two seats still won’t be selecting their candidates through a primary. The 5th District GOP recently posted a memo saying that it's not permissible at this point to switch from nominating candidates at a convention to the state-run primary, which is on June 9.
Ben Slone, who runs the 7th District GOP, told Roll Call’s Stephanie Akin that his group would discuss what to do on Thursday. All he would say about alternatives to the convention, though, was, “We have a set of contingency plans that will be invoked depending on guidance and government health dictates.”
Melvin Adams, who runs the 5th District GOP committee, also told Akin that they would be talking next week about moving the convention date, and he was more forthcoming with his plans. Adams said that he’d hoped to move the event to June 6, which is the weekend before the statewide primary.
However, Riggleman and his supporters say that Adams has been promoting another option if it’s still not safe to hold a convention by then, and it’s not one they like at all. Riggleman said the 5th District Republican Committee, which has fewer than 40 members, could end up picking the party’s nominee, and Adams didn’t deny that this was a possibility. Indeed, this is how Riggleman got chosen as Team Red’s candidate two years ago after Rep. Tom Garrett ended his campaign after winning renomination. That was a very different set of circumstances, though, and an unnamed Riggleman ally on the committee said that, if this ends up happening this year, “I think it would be unfair. It’s a very undemocratic process.”
There’s another huge potential drawback to using this method. Riggleman said that party rules require a candidate to earn the support of at least two-thirds of the district committee, which raises the possibility that no one could end up with the GOP nod. And even if someone claims a supermajority, the congressman argued, it’s possible that the state Republican Party won’t recognize this person as the rightful nominee. Indeed, an unnamed former state party official told Roll Call that the committee only picked the candidate last cycle because their nominee had dropped out, and that “[c]hanging to a process where Republican voters don’t have a voice would be against the party plan and potentially against state law.”
Riggleman himself sounds quite unhappy with this whole state of affairs, saying that he wanted a primary instead of “a convoluted convention process that is collapsing under the weight of this crisis.” Riggleman already had reasons to be wary about party leaders, rather than voters, choosing the nominee here. The congressman infuriated plenty of social conservatives at home in July when he officiated a same-sex wedding between two of his former campaign volunteers. This quickly resulted in a homophobic backlash against him, and local Republican Parties in three small 5th District counties each passed anti-Riggleman motions. It also didn’t escape notice that the convention was supposed to be held at Good’s church.
Riggleman’s path to a second term could be even more perilous if the 5th District Committee ends up choosing the nominee, especially since its chairman sounds very frustrated with him. “I know the congressman and some of his staff and other people have been putting out false information, or at least implying this committee is trying to rig things,” Adams said. “This committee is not trying to rig things.”
Democrats, by contrast, opted to hold a traditional primary in June, and so Team Blue doesn’t have anything like the mess that’s haunting the 5th District GOP. Democrats have several notable contenders running here, and while it will still be tough to flip a seat that Trump won by double digits, GOP infighting could give the eventual nominee more of an opening.
● Alaska: Alaska's Republican-run state Senate has unanimously passed a bill that would allow Republican Lt. Gov. Kevin Meyer to order that the state's Aug. 18 downballot primaries be conducted entirely by mail. (The lieutenant governor is Alaska's chief election official.) However, Republicans blocked an attempt by Democrats to require that the state provide dropboxes where voters can return their ballots, an option that is very popular in states that have adopted universal voting by mail, in part because it obviates the need for a postage stamp and avoids the risk of delayed mail return service.
The bill now goes to the state House, which is controlled by a Democratic-led coalition that includes Republicans and independents. The Alaska Daily News says that Republican Gov. Mike Dunleavy is "expected" to sign the measure "speedily" if both chambers pass it.
● Indiana: Indiana's bipartisan Election Commission has unanimously waived the state's requirement that voters who wish to vote absentee in June's presidential and downballot primaries provide an excuse in order to do so.
● Nebraska: Election officials in Nebraska say there are no plans to delay the state's May 12 presidential and downballot primaries, but at least half a dozen counties—including the three largest—will send absentee ballot applications to all voters, while a number of other small counties had previously moved to all-mail elections prior to the coronavirus outbreak. In all, more than half the state will either receive absentee applications or mail-in ballots, including all voters in the state's 2nd Congressional District, a competitive district that features a multi-way Democratic primary.
● Nevada: Republican Secretary of State Barbara Cegavske and local election officials from all 17 Nevada counties have announced plans to conduct the state's June 9 downballot primaries almost entirely by mail. Every active registered voter will be sent a postage-paid absentee ballot that they can return by mail or at an in-person polling site, of which each county will have at least one. Importantly, these voters will not have to request an a ballot. At least one in-person polling place will also be available in each county.
Ballots must be postmarked or turned in by Election Day, though they will still count as long as they are received up to seven days later. Officials will also contact any voter whose ballot has an issue (such as a missing signature), and voters will have until the seventh day after the election to correct any problems. Cegavske's press release wisely cautions that, under this system, final election results will not be known until well after election night, though this is a point that officials across the country will have to emphasize loudly and repeatedly as mail voting becomes more widespread.
One potential issue with Cegavske's plan, though, is that registered voters who are listed as "inactive" on the voter rolls will not be sent ballots. However, as voting expert Michael McDonald notes, these voters are still eligible to vote, and every election, many do. While they can still request absentee ballots on their own, they now face an obstacle that active voters will not. Approximately 14% of Nevada's 1.8 million registered voters are on inactive status.
● Ohio: Lawmakers in Ohio's Republican-run legislature unanimously passed a bill extending the time to vote by mail in the state's presidential and downballot primaries until April 28, and Republican Gov. Mike DeWine has said he will sign it "soon." There would be limited in-person voting only for people with disabilities or special needs, and voters would also be able to drop off absentee ballots in person on that day, but ballots would have to be mailed by April 27 and be received by May 8 in order to count. However, voting rights groups have expressed serious reservations about the plan and say they may sue.
Under the bill, the state would send postcards to voters explaining how to request an absentee ballot application. Voters would then have to print out applications on their own, or request one be mailed to them, and then mail them in—they cannot be submitted online. They would then have to mail in their absentee ballots (though these at least would come with a postage-paid envelope).
Voting rights advocate Mike Brickner notes that there is very little time left to carry out this multi-step process, particularly because each piece of mail would be in transit for several days. In addition, printing all of these materials, including the postcards that are designed to kick off this effort, will take considerable time, especially since government offices, the postal service, and print shops "may not be operating optimally," as Brickner observes.
● Pennsylvania: Pennsylvania's Republican-run legislature has unanimously passed a bill to move the state's presidential and downballot primaries from April 28 to June 2. Democratic Gov. Tom Wolf has said he will sign the measure.
● Wisconsin: The city of Green Bay has filed a lawsuit asking that a federal judge order Wisconsin officials to delay the state's April 7 elections until June 2 and to extend its voter registration deadline to May 1. (The deadline for registering by mail has already passed, but voters can still register online through March 30 thanks to an earlier order by a different judge.) Green Bay has also asked that it be allowed to cancel in-person voting and mail ballots to all registered voters.
● MI-Sen: The GOP firm Marketing Resource Group is out with a new survey giving Democratic Sen. Gary Peters a 42-35 lead over Republican John James, which is an improvement from the incumbent's 43-40 edge in October. The only other poll we've seen this month was an early March survey from the GOP firms 0ptimus and Firehouse Strategies that gave James a 41-40 advantage.
● ME-Sen: The Democratic group Majority Forward has announced that it's launched a new six-figure ad campaign supporting state House Speaker Sara Gideon. The spot praises Gideon's work securing millions for coronavirus testing, as well as workers and small businesses.
● SC-Sen: Democrat Jaime Harrison is out with a poll from Brilliant Corners that shows GOP Sen. Lindsey Graham leading him by a small 47-43 margin. The only other survey we've seen in the last few weeks was a late February Marist poll that showed Graham up 54-37.
● WV-Gov: The GOP firm Medium Buying reports that GOP Gov. Jim Justice launched his first ad of 2020 last week, and we now have a copy of his commercial. The ad begins with a clip of Donald Trump at a rally saying, "My good friend, and your governor, Jim Justice," before the narrator jumps in and praises the incumbent as a conservative Trump ally.
Former state Commerce Secretary Woody Thrasher, by contrast, has been running commercials since June of last year, and he's out with another one ahead of the May GOP primary. Thrasher tells the audience that the coronavirus is creating hardships for West Virginia, and that the state "needs to be proactive in terms of its reaction to this crisis, not reactive the way we have been so many other times." Thrasher then lays out his plan for helping the state economically during the pandemic.
Thrasher doesn't mention, much less directly criticize, Justice's handling of the situation, but he still argues that the state isn't doing enough. "Our president is being very proactive in terms of dealing with those issues," Thrasher says, "We need to follow suit and be proactive as well." He concludes, "It's time for the state of West Virginia to get something done."
● IN-05: In an unusual move, retiring Rep. Susan Brooks' office publicly told businesswoman Beth Henderson to stop saying that Brooks had recruited her or even given her any special encouragement to run at all. "Susan talked with all Republican candidates who called her and expressed an interest in running in the 5th District to share her insights about representing this district," a Brooks aide said. "Some candidates did not call her." Brooks has not taken sides in the crowded June GOP primary to succeed her.
However, Henderson made it sound like the congresswoman was pulling for her back in February when she declared, "Susan Brooks encouraged me to run." The candidate put out a statement this week insisting that she and Brooks "have had a couple conversations regarding the Fifth district. She has been encouraging throughout my campaign, as I imagine she has been with other candidates as well."
The Indianapolis Star also obtained a voicemail from an unidentified person raising money for the Henderson campaign who said, "Susan actually recruited Beth to run for her, and we are working hard to raise funds to ensure that that happened." Henderson's team acknowledged that this person was affiliated with the campaign but insisted that none of that was included in the script that caller was given.
● MI-13: Detroit City Council President Brenda Jones announced Wednesday that she would seek a primary rematch against Democratic Rep. Rashida Tlaib, who is one of the most high-profile members of the House freshman class. Jones, who briefly held this seat for a few weeks in the lame-duck session of the last Congress (more on that later), kicked off her campaign with a video declaring that she was “running for re-election” to this safely blue seat.
While Jones didn’t mention Tlaib in that message, she argued in a new interview with the Detroit News that her opponent has “spent a lot of her energy in places other than the 13th District.” Jones said that, unlike the congresswoman, “I will be totally focused on the 13th District, being the third-poorest district in the United States.”
Jones and Tlaib have a lot of history. Thanks to some very unusual circumstances, they even faced off three separate times in 2018. That August, Michigan held two different Democratic primaries on the same day for this seat: one for a special election for the final months of former Rep. John Conyers' term, and one for the regular two-year term. Jones had the support of Detroit Mayor Mike Duggan and some unions, but she had trouble raising money. Tlaib, by contrast, didn’t have as many prominent local endorsements, but she decisively outraised each of her many opponents.
Tlaib narrowly beat Jones 31-30 in the six-way primary for the full term. However, there were only four candidates on the ballot in the special election primary, and in that race, it was Jones who edged Tlaib 38-36.
The two candidates who were only on the ballot for the regular term, state Sen. Coleman Young II and former state Rep. Shanelle Jackson, took a combined 18% of the vote, so their absence in the special primary likely had an impact. Jones, Young, and Jackson, along with more than half the district's residents, are black, while Tlaib is of Palestinian descent (only 4% of residents identify as Arab American). It's therefore probable that the presence of two additional African American candidates in the regular primary but not in the special primary made the difference between the two close outcomes.
Jones, however, didn't relish the idea of serving just a few weeks in the House and wound up launching a last-minute write-in campaign against Tlaib for the general election. It was a misguided move, though, as she took just 0.32% of the vote. Jones and then-Speaker Paul Ryan ended up working out an apparently unprecedented agreement that allowed Jones to serve a few weeks in the House without resigning as head of the Detroit City Council, letting her take a hiatus from that post until Tlaib was sworn in in January of 2019.
Tlaib immediately earned national attention on her first day in office when she said of Donald Trump, "[W]e're going to impeach the motherfucker," and she’s been in the headlines plenty since then. Most notably, Trump targeted Tlaib and the three other women of color who make up “The Squad” with a racist tweet in July. Thanks to her celebrity, Tlaib has done well in raising money from progressives across the country, ending last year with a hefty $1.2 million on-hand.
Tlaib, who has been a prominent Bernie Sanders surrogate, has her share of intra-party critics and recently inflamed some of them when she booed Hillary Clinton at a Sanders campaign event in January in Iowa. Jones, however, has her own issues, particularly as a longtime supporter of Louis Farrakhan, the anti-Semitic head of the Nation of Islam, even sharing the stage with him at a 2017 event in Detroit.
If Jones has any reservations about Farrakhan—whose lowlight reel includes gems like, “The Jewish media has normalized sexual degeneracy, profanity, and all kinds of sin,” and, “In Washington right next to the Holocaust Museum is the Federal Reserve where they print the money. Is that an accident?"—she hasn't put them on display. Rather, just last month, her chief of staff said that Jones was sponsoring a resolution commending Farrakhan’s newspaper, which ran a piece Farrakhan wrote in 2016 saying that the Sept. 11 attacks were “a false flag operation,” for its “truthful articles.” For his part, Farrakhan himself singled Jones out for praise in a speech in Detroit two years ago.
● TN-01: State Rep. Timothy Hill announced on Tuesday that he was joining the August GOP primary for this safely red open seat. Hill has served in the state legislature for four terms, and he's risen to become chair of the Commerce Committee.