October 21, 2022
By Susanna Clark
The Rhode Island legislature recently passed the “Let Rhode Island Vote Act,” which was signed into law by the governor on June 8, 2022. The law contains several measures intended to make voting easier for Rhode Islanders. This comes at a time when several other states like Georgia, Iowa, and Florida have enacted measures to make it more difficult to vote. The lieutenant governor cited COVID-19 and the January 6 riots as reasons for the new law. One of these measures removes the requirement that mail-in ballots be filled out either before a notary public or before two witnesses. Another established a virtual portal that allows voters to apply for the mail-in ballot online, rather than having to fill out their application in person or mail in the form. Furthermore, the statute removes the requirement that voters provide a justification for obtaining a mail-in ballot. The Act further eases restrictions regarding emergency mail-in ballot applications. Moreover, a new telephone hotline provides information on voter registration, the voting process, and polling locations.
Bloomberg News assessed Rhode Island’s election system. Bloomberg found that while Rhode Island’s election system scored well in terms of ballot security, it could still make improvements in the voting category. While the article does indicate that the Act includes online registration, no-excuse early or mail-in voting, and online ballot tracking, it is important to note that the Act does not include some considerable items that other states have implemented to further ease restrictions. These measures include election-day registration, automatic registration (at an agency other than the DMV), a permanent mail-voter list, and voting supercenters (that allow anyone to vote regardless of their precinct). These measures have become more significant in the wake of accusations of election security violations and fraud, propagated mainly by Trump-supporting Republicans.
The former president of the United States infamously claimed that widespread voter fraud ran rampant during the 2020 election. He specifically targeted mail-in voting, which was highly utilized in 2020 due to COVID-19. These issues have been highly politicized, especially because of the January 6 riots, which was an attempt by Trump supporters to prevent Congress from confirming the outcome of the 2020 election. This appears to be a notable reason why the legislature passed this bill—to ensure that people who want to vote by mail are able to do so. Bloomberg also measured how Rhode Island responded to the 2020 election in other ways. Rhode Island followed its normal auditing and recount procedures, did not modify its criminal penalties for election officials, and did not join a lawsuit attempting to induce the Supreme Court to overturn the election. Additionally, all of its representatives in Congress voted to certify the election results.
The Rhode Island legislature and governor likely felt it was necessary to take a stronger stance against the allegations of fraud through this Act’s implementation. The decision whether to expand or restrict voting falls almost strictly along party lines. Rhode Island has a Democratic majority in its legislature and a Democratic governor, and the states that passed laws restricting voting have been majority Republican. Voting laws have always been somewhat partisan, but it seems the parties have become even more divided on the ways elections ought to be conducted. It remains to be seen whether the Let Rhode Island Vote Act will increase voter turnout in the midterm elections this November.
October 17, 2022
By Caleb McClain
As a native of the Los Angeles area, one of the most enduring local news items of late from home has been the repeated attempts to mount a campaign to oust freshly elected District Attorney George Gascón. After the recent failure to recall California Governor Gavin Newsom, this LA County native can only stop and wonder what is this whole recall business our state has found itself so marked by.
Answering this question requires us to step back a bit and first ask: just what is a recall? A recall is simply put a voter-led effort to remove an elected official before their term of office expires. Currently nineteen states and DC allow for a recall of elected officials. In California, a recall begins by circulating a notice to recall a specific official. Then a recall petition is circulated in the required jurisdiction to gain the required number of signatures, which varies based on whether it is a local or state elected official. If the required number is gathered, an election is held to decide if the official will be recalled and, if so, who will replace them. Some states, such as Alaska, have specific requirements to initiate a recall, but California is not among them.
Recall elections emerged in California in 1913 as part of then-Governor Hiram Johnson’s progressive era reforms that also introduced ballot initiatives and referendums to the state’s election framework as a way to take power back from corrupt special interests. Since 1913, there have been over 179 recall attempts of state officials, and the majority of those that have been from the 1980s to the present mostly concern the governor or state assembly members. Of the attempts, only eleven have actually qualified for the ballot, with only six being successful. The most famous of these is the 2003 recall of Democratic Governor Grey Davis after a series of policy and state financial crises, and his replacement by “The Governator” himself, Arnold Schwarzenegger.
Critics of California’s recall system have noted several major problems with the process. The first of these is the incredibly low bar for signatures to trigger a recall election. Currently a recall only needs to gather 12% of the vote to proceed for a statewide office like the governor. That breaks down to around 1.5 million votes. This sounds impressive, until you consider that California has a population of approximately 39 million people, of which almost 25 million are eligible to vote and over 22 million are fully registered. As Secretary of State Shirley Webber puts it, “… [i]s it reasonable to have such a low bar for recall . . . [t]here’s always 10 to 15% who do not like somebody.”
The second major problem is that recall elections are an expensive process. The attempted recall of Governor Newsom cost the state $200 million in taxpayer money which, while fortunately under budget, is still a significant unexpected expense, even for a state with a large budget surplus.
Third, there is also concern that recalls function less as a voter accountability tool than as a vehicle for partisan attacks. The frequency of recall attempts can be neatly mapped onto the growth of partisanship in California, and with the power of the internet and social media it is easier than ever for dissatisfied individuals to find each other and organize. This is further supported by the very partisan attitudes toward reforming the recall process.
Fourth is the charge that because of the way the recall process is, in practice, it is deeply undemocratic. One quirk of California’s recall process is that two questions are asked on the ballot. The first is whether if the official in question should be recalled, and the second is if so, who should replace them. The fear on the part of many is that an official could be recalled by the majority of voters but their successor could win without a majority of the vote. All they would require is more votes than their rivals.
Finally, there is the question about how useful a recall is, even when successful. Consider the first ever recalled governor, North Dakota Governor Lynn Frazier, back in 1921. Governor Frazier’s recall had more to do with internal partisan squabbles than any alleged unfitness or corruption; he was even elected to a US Senate seat the next year and served there for three terms. Nor is California’s historic recall of Grey Davis an unqualified success; while it is true that Davis was historically unpopular when voters went to the polls in 2003, much of that was due to the Enron energy crisis, which was largely out of his control. Ultimately his replacement, “The Governator,” left office with the same approval rating as Davis. This was due in no small part to the aftereffects of the 2008 global recession, something also out of gubernatorial control.
Despite these flaws, recalls do still remain popular amongst the voting public, with over 86% percent of CA voters believing it is a good thing to have, and other states seeing comparable levels of support. That said, over 66% of voters agree that some level of change to the recall process is needed. Several California political figures have come together proposing various changes, including members of the state assembly, the Secretary of State Shirley Webber, and even recalled governor Grey Davis. Among the various proposals for reform are: (1) increasing the number of signatures needed to trigger a statewide recall, (2) allow an official being recalled to run as a replacement, (3) require a certain bipartisan threshold for signatures, and (4) allowing the lieutenant governor to serve if a recall succeeds until a new election can be held. Ultimately, any change to the recall process would require changing the California Constitution and be subject to the approval of the voters who are fond of the power given to them.
October 14, 2022
By Darian Kanouff
On July 19, 2022, the Supreme Court of Ohio ruled (in a 4-3 split) that a remedial congressional-district plan, adopted on March 2, 2022, violated Article XIX, Section 1(C)(3)(a) of the Ohio Constitution. This decision follows the court’s previous finding that the originally adopted congressional-district plan was also unconstitutional. Despite this ruling, a new plan has not been created, seemingly also in violation of the Ohio Constitution.
The General Assembly passed the first congressional-district plan in November 2021. The Supreme Court of Ohio held on January 14, 2022, that the plan violated the state constitution’s provisions that a redistricting plan may not “unduly favor[] or disfavor[] a political party or its incumbents” or “unduly split governmental units,” since the plan “unduly favored the Republican Party and disfavored the Democratic Party” and “unduly split Hamilton, Cuyahoga, and Summit Counties.” Under this plan, despite receiving merely 53% of the popular vote in recent elections, Republicans were likely to win 80% of the seats (12 out of 15). The court ordered, pursuant to the Ohio Constitution, that the General Assembly pass a new constitutionally-compliant plan within thirty days, and if the legislative body failed to do so, that the Ohio Redistricting Commission pass a plan within thirty days of the General Assembly’s failure. Because the General Assembly failed to pass a plan within 30 days, the responsibility fell to the Ohio Redistricting Commission, which passed the second congressional-district plan on March 2.
The Supreme Court of Ohio held that the March 2 plan also violated Article XIX, Section 1(C)(3)(a) of the Ohio Constitution (i.e. that the plan “unduly favored the Republican Party and disfavored the Democratic Party”). Specifically, the court found that the petitioners proved the constitutional violation “beyond a reasonable doubt” through comparative analyses and other metrics that demonstrated that the plan “packed” and “cracked” Democratic voters, turning “districts that would otherwise be strongly Democratic-leaning [into] competitive or Republican-leaning districts.” The court found that the “best-case scenario” under the March 2 plan would result in the Democratic party winning 4 of the 15 seats (27% of the seats), noting that the plan is “only slightly less favorable to the Republican Party . . . than the original plan.” The court ordered the same remedy as before, pursuant to the Ohio Constitution: that the General Assembly pass a constitutionally-compliant plan within thirty days, and if it does not, that the Ohio Redistricting Commission pass a constitutionally-compliant plan within thirty days of the General Assembly’s failure.
Thirty days after the court’s order on July 19, the General Assembly had not created a new plan; this time, however, the Ohio Redistricting Commission did not take up the task. Why not? The Ohio House Speaker, a former Ohio Supreme Court Justice, Bob Cupp, believes that the General Assembly has actually not missed its court-imposed deadline. He claims that because “congressional redistricting includes elements of U.S. Constitutional and federal law,” the legislative leaders have the option of appealing the state court’s decision to the Supreme Court of the United States. The Rules of the Supreme Court of the United States provide that an appeal to the Supreme Court of the United States must be filed within ninety days of a state high court’s final judgment, and the Ohio Constitution provides that the thirty day clock for redistricting begins on the last day on which an appeal could have been filed. Thus, he argues that the General Assembly has thirty days to create a new map beginning on October 17 (the purported deadline for appealing the case to SCOTUS). The legal director for the ACLU of Ohio, Freda Levenson, disagrees that the case is appealable to the Supreme Court of the United States. She asserts that “[b]ecause the [Supreme Court of Ohio]’s order to draw a new map ruled purely on matters of Ohio law, it is not appealable in federal court.”
While no action has been filed challenging the General Assembly’s and the Ohio Redistricting Commission’s failure to adopt a new plan within thirty and sixty days, respectively, all eyes are on the General Assembly as the supposed October 17 deadline approaches for the Ohio legislative leaders to appeal their case to the Supreme Court of the United States.
Voting rights groups and other organizations are distressed by the Republican Party’s supposed usurpation of the redistricting process, as it is in direct contrast with the Ohioans’ demonstrated preference for limiting partisan gerrymandering (more than 70% of Ohio voters voted to approve the 2018 amendment containing the constitutional provisions at issue here). However, because the Ohio Constitution’s only remedy for such violations is voiding the unconstitutional plan and requiring the General Assembly or Commission to create a new one, the Republican party had the option to “run down the clock,” resulting in the unconstitutional March 2 plan being used in the May primaries and the upcoming November election. “Running down the clock” could have another potential benefit to the Republican Party: the executive director for the League of Women Voters of Ohio, Jen Miller, thinks the Republican Party may be elongating this process to wait and see if the state supreme court justices elected this November will be more sympathetic to the party’s positions on line drawing.
Those disappointed in what has happened are considering further amendment to the state constitution. Among the considerations are an independent redistricting commission (as opposed to the current partisan commission, which consists of the Governor, the Auditor, the Secretary of State, and individuals appointed by the majority and minority leaders of the state legislature) or stronger checks and balances among the government branches. However, such bolstered amendments may not achieve what their proponents hope for if the independent state legislature theory (a theory which purports that all parts of the election process, including redistricting, fall solely under the purview of the state legislature, and are not subject to interference from the other branches) is adopted by the Supreme Court of the United States this term in Moore v. Harper.
April 1, 2022
By Stephanie Perry
State of Elections blog posts are written by William & Mary Law students who have opted into studying election law in all its nuances. We sweat the difference between a racial gerrymander and a political gerrymander, the distinction between an expenditure and a campaign contribution. That said, this blog writer was genuinely confused on the first (and second and third) read by the language and content of Ballot Proposal 1 that appeared on ballots across New York state on November 2, 2021. “Amending the Apportionment and Redistricting Process” is the title of Proposal 1. There are tough topics in an Election Law class, but I had hoped the framers of the ballot question would boil it down to its simplest terms for an audience with lesser election law literacy than a second-year law student.
This was not the case. Instead, the ballot question reads: “This proposed constitutional amendment would freeze the number of state senators at 63, amend the process for the counting of the state’s population, delete certain provisions that violate the United States Constitution, repeal, and amend certain requirements for the appointment of the co-executive directors of the redistricting commission and amend the manner of drawing district lines for congressional and state legislative offices. Shall the proposed amendment be approved?”
(more…)
March 28, 2022
By: Anna Miller
In May 2020, the Supreme Court of South Carolina was asked to rule on whether the COVID-19 pandemic constituted enough of a “physical disability” to allow all South Carolina voters to vote absentee in the 2020 election. Currently, South Carolina election law requires absentee voters to have an approved reason for casting an absentee ballot, including being unable to cast an in-person vote due to physical disability. South Carolina Code Section 7-15-310 defines physical disability as “a person who, because of injury or illness, cannot be present in person at his voting place on election day.”
In Bailey v. SEC, the South Carolina Democratic Party sued the South Carolina State Election Commission to reinterpret this provision in light of the global pandemic, which would allow every voter to vote absentee without changing South Carolina’s election laws. However, while this case was pending before the South Carolina Supreme Court, the South Carolina legislature made temporary changes to the election law allowing regions under a state of emergency declaration to vote absentee without a stated reason.
(more…)
March 23, 2022
By: Kelsey Nickerson
Montana is one of the largest states in the county, but unlike its counterparts Texas and California, it is home to relatively few people and only accounts for 3 electoral votes. The state had some close elections as of late, and with a relatively small population, a small number of votes can play a large part in election results. As in most states, the 2020 Election inspired Montana to enact much more stringent voting laws relating to registration, identification, and absentee voting. Many of these laws, despite the obvious problematic result of disenfranchisement of indigenous voters, were upheld under Section 2 of the Voting Rights Act in the Supreme Court’s decision in Brnovich v. Democratic National Committee this past summer. In Montana, however, a new group has challenged the restrictive bill: young voters.
HB 506, along with instating various redistricting criteria, requires that “[u]ntil the individual meets residence and age requirements, a ballot may not be issued to the individual and the individual may not cast a ballot” via mail. Though it may seem like a reasonable limitation to place on mail-in voting, it does burden a certain portion of the population. Young people, whose participation has surged in Montana over the past few years, object to stringent absentee requirements that target both their age and transient nature. For example, young Montanans who will be 18 and eligible to vote on Election Day, but will not reach that age before the extremely early deadline to request a mail-in ballot, are prevented from voting if they can’t return to their district on Election Day. Additionally, residency requirements require 30 days of presence in a new location before an absentee ballot may be requested. With large portions of teens in Montana moving both away from home and out of state in the fall, there is little room for error in requesting an absentee ballot, and sometimes the request is impossible.
(more…)
March 21, 2022
The 2020 presidential election was historic for many reasons, among them, the special safety measures that state election administrators had to suddenly implement in response to the COVID-19 pandemic. In its effort to ensure voter safety in the 2020 election process, the Nevada legislature passed a law that would require all counties to mail absentee ballots to registered voters during emergency situations. The law aimed to make it easier for Nevadans to vote without having to physically go to the polls. The law also provided some procedural flexibilities in that it permitted the collection of mail-in ballots by third party collectors.
(more…)
March 18, 2022
By: Shelly Vallone
The Alabama Senate gave final approval for a redistricting plan of Alabama’s congressional districts on November 3, 2021 after Governor Kay Ivey commenced a special reapportionment session on October 28, 2021 to complete the mandatory redrawing of Congressional, State House of Representatives, State Senate, and State Board of Education districts after the 2020 Census. The Senate mostly maintained the status quo, notably preserving the state’s only majority-black Congressional district without adding another. Ahead of the plan’s approval, Alabama state Senators Rodger Smitherman and Bobby Singleton, along with four Alabama voters, filed suit on September 27, 2021, in the United States District Court Northern District of Alabama Southern Division, asking the Court to declare the current districting plan unconstitutional and allow the legislature to remedy the violations ahead of the 2022 elections.
In their amended complaint, filed the day after the Senate’s approval, the plaintiffs argue the plan “was drafted by incumbent members of Alabama’s Congressional delegation to maintain their current districts with only those changes necessary to equalize populations.” The plaintiffs also stress the urgency of their claim in light of the fast-approaching 2022 elections. Candidates seeking nomination in a party primary must file a declaration of candidacy with the state party chairman by January 28, 2022. Therefore, the plaintiffs asked the Court to conduct a final hearing before the end of 2021 to settle whether the plan constitutes a racial gerrymander before the primary elections in May 2022.
(more…)
March 16, 2022
By: Sarah Depew
On October 18, 2021, the Mexican American Legislative Caucus (MALC), the largest and oldest Latino legislative caucus in the nation, issued a public statement on their Twitter account stating that they filed a petition for deposition in order to investigate a possible violation of the Texas Open Meetings Act. More specifically, the public statement raised concerns about the possibility of secret communications and decision-making in Texas’ redistricting process.
(more…)
March 14, 2022
Sham candidates are influencing outcomes in Florida elections. And it’s “not necessarily illegal.” Running sham candidates, or “ballot management,” is the practice of strategically running a no party affiliation (NPA) or third-party candidate not to win, but to siphon votes from a competitor. The 2020 race for Florida Senate District 37 illustrates the issue.
Incumbent Democratic state senator José Javier Rodríguez ran for reelection to his seat representing Florida’s Senate District 37, which he first won in 2016. His competitors were Republican Ileana Garcia and NPA candidate Alex Rodriguez— an auto parts dealer who conveniently shared the same last name as José Javier Rodríguez. Suspiciously, Alex Rodriquez did not appear to want to win the election, failing to campaign, speak publicly, or otherwise engage with voters. By itself, it’s possible Alex Rodriquez was someone who simply wanted to throw his hat into the ring, but perhaps lacked the will or resources for a full-throated campaign. Unfortunately, that was not the case.
(more…)