November 4, 2022
By Noble Pearson
Over the past several years, Virginia has expanded early voting in the state with new legislation. In April 2020, former Governor Ralph Northam signed HB1/SB111 into law, which allows any registered voter to vote up to forty-five days prior to an election by absentee ballot in any election in which that person is qualified to vote with no excuse required. On that same day, Northam also signed HB238/SB455, which allows absentee ballots to be counted if they are postmarked on or before the day of an election and are received by the general registrar by noon on the third day after the election. The next year, in March of 2021, Northam signed HB1968 into law, which permits local election boards to offer absentee voting in person on Sundays during the early voting period leading up to an election. Before these changes, voting by absentee ballot had been restricted to voters meeting specific requirements, such as being an out-of-area student or a member of the armed forces residing temporarily out-of-state. The 2020 and 2021 changes thus expanded access for Virginia voters regarding early voting, particularly in response to the Covid-19 pandemic.
Since the passage of these new laws expanding early voting, Virginia has held two elections with extremely high turnout in 2020 and 2021. 2020 saw a contentious presidential election, and 2021 included statewide contests for Governor, Lieutenant Governor, and General Assembly seats. We are now approaching the first midterm election since the new laws referenced above have been passed. There are no state elections on the ballot this time, and only a handful of competitive races for U.S. Congress, but turnout is still expected to be high. Some are suggesting that deep political divisions in the state concerning topics such as the economy, abortion, and Donald Trump will motivate increased voter participation in this election, especially early participation.
While, at the time of writing, we are still two weeks away from election day itself, high numbers of early voters are making news around the Commonwealth. In the 2018 midterm election, the last midterm election before the new laws went into effect, the grand total of early voters was around 345,000. As of October 19, 2022, more than 302,000 votershad already voted early, with nearly three weeks remaining. Suffolk General Registrar Burdette Lawrence claims that Suffolk has received near-presidential race levels of early votes. Reports from around the state, including Roanoke, Richmond, and Prince William County, indicate that early voting is taking place at significant levels. With increased access and strong political motivation, the popularity of early voting and voting by mail seem to be rising.
With many challenges remaining for election officials, there is also hope that early voting provides an avenue to mitigate other election concerns. Experts are bracing for map-based confusion in this election, as the voting maps in Virginia have changed following post-census redistricting. Additionally, there have been recent reports of printing errors wreaking havoc in northern Virginia, with election officials in Fairfax and Prince William counties reporting that over 31,000 voters received documents indicating incorrect polling locations. The good news is that early voting may help alleviate some of these issues, as county election officials have recommended early voting as a possible way to proactively avoid confusion regarding polling location on election day.
The November 2022 midterm election in Virginia is yet to be complete, but it is clear that Virginia’s recent legal changes to expand access to early voting are leading to increased voter turnout. With the voting numbers already closing in on those of the previous midterm in 2018, all expectations are that there will be a noted increase in midterm voter turnout this election. Prince William County registrar Eric Olsen has said that the state should expect to see even more early voting in the remaining days before the election, with voters often procrastinating until the last few days before the election to cast an early vote.
It is easy to see why expanded early voting is so popular. Early voting is safer, easier, and more accessible than ever before, and may well lead to enhanced civic engagement. In a time of contentious politics and heightened division, voting is increasingly important to members of both political parties. In fact, support in Virginia for early voting has been largely bipartisan, with Republican Governor Glenn Youngkin’s embrace of early voting playing a part in his 2021 election. Politics aside, the ability to vote is a fundamental part of American civil life. As Virginia is demonstrating, expanded access to voting results in expanded interest in voting, which is good for democratic participation. Long may it continue.
October 31, 2022
By Katie Kitchen
While literacy tests are no longer formally part of the U.S. election process, numerous laws, including a decades old law in Missouri, still result in similar forms of voter suppression. This law, Mo. Rev. Stat. § 115.44.3, has been in effect since 1977 and states, “No person, other than election judges and members of such voters’ immediate families, shall assist more than one voter at one election.” While this single sentence may seem like a small detail in terms of election procedure, in practice, some argue the law infringes on the rights of limited English proficient individuals and people with disabilities to vote.
One such person is Susana Elizarraraz’s mom. Elizarraraz’s mom is deaf, limited English proficient, and relies on Elizarraraz’s assistance to cast her ballot in each election. When Elizarraraz had to go out of town for work during an April 2022 election, her mother was unable to vote, as there was no one available to assist her due to the limitations of Missouri’s Single-Voter Assistance Restriction.
A group of Plaintiffs are currently challenging Mo. Rev. Stat. § 115.44.3 in Missouri Protection & Advocacy Services v. Ashcroft. The Plaintiffs in this matter are Missouri Protection and Advocacy Services (Mo P&A), VozKC, and three individuals who have been directly impacted by Missouri’s Single-Voter Assistance Restriction. One of those individuals is Susana Elizarraraz. Mo P&A is a non-profit public interest law firm focused on protecting the rights of individuals with disabilities. VozKC is a volunteer organization that advocates for Latino communities and works with limited English proficient populations.
In the Complaint, filed June 22, 2022, the Plaintiffs assert that Mo. Rev. Stat. § 115.44.3 violates § 208 of the Voting Rights Act (VRA) and the Supremacy Clause of the United States. Section 208 of the VRA states, “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” Therefore, the Plaintiffs argue that the limitation included in Mo. Rev. Stat. § 115.44.3 hinders the ability of voters who require assistance to choose the individual who assists them, which can lead to an inability to exercise the right to vote entirely. Additionally, because Mo. Rev. Stat. § 115.44.3 is a state law that may infringe upon the VRA (a federal law), the Plaintiffs assert that it violates the Supremacy Clause, which generally states that federal law is the “supreme law of the land”.
The Plaintiffs make many compelling arguments regarding why challenging an election law from 1977 is prudent today. One reason is that the Latino population grew by nearly 50% across the St. Louis region since 2010, but Missouri does not offer election materials in languages other than English. Additionally, approximately 18.6% of Missouri’s eligible voting population are individuals with disabilities who are projected to be eligible to vote in Missouri in 2020. Thus, voter assistance for populations of limited English proficient voters and voters with disabilities in Missouri has become even more critical as the population changes. The non-profit communities are unable to have one volunteer for every individual who may need assistance, which is what would be required to abide by Mo. Rev. Stat. § 115.44.3. The Plaintiffs describe this situation as a choice between large groups of people being unable to exercise their right to vote versus having individuals risk criminal prosecution by violating the Missouri’s Single-Voter Assistance Restriction. What may seem like a small procedural matter can impact the ability of entire groups of minority populations to exercise their right to vote, which has concerning ramifications for democracy as a whole.
I will delve into the Answers filed by the Defendants as well as the Statement of Interest filed by the Department of Justice in future posts. From a brief glance, issues such as whether there is a private remedy to enforce § 208 of the VRA are likely to be raised. Additionally, it is worth noting that there is similar litigation in Arkansas challenging a law that prohibits individuals from assisting more than six voters in casting a ballot each election. As the cases progress, it will be interesting to see whether courts will invalidate all limitations to § 208, or if they will determine an acceptable threshold of how many voters it is reasonable for one person to assist within the boundaries of the VRA. This distinction may be a determining factor in the equitable ability of individuals with disabilities and/or limited English proficiency to exercise their right to vote.
October 28, 2022
By Emily Baker
There has been significant news coverage on court proceedings covering Florida state election law. Recent articles include titles such as “Florida appeals court questions ruling on elections law” and “An appeals court questions a ruling against parts of Florida’s election law.” The main questions are, what happened and what do these reports mean?
Starting from the beginning: Florida’s Senate Bill 90 was signed by Governor Ron DeSantis, live on Fox News, on May 6th, 2021. It received immense criticism, because its effect would generally make it more difficult to vote by mail. The bill was immediately challenged by multiple sets of plaintiffs—the Harriet Tubman Freedom Fighters, the League of Women Voters, the Florida NAACP, and Florida Rising Together—each bringing slightly different claims. The lawsuits were consolidated into one case by the district court, challenging three colorable issues:
- A provision regulating the use of drop boxes for collecting ballots criminalized dropping off more than two ballots besides those from immediate family members and required monitoring by election personnel. As a result, access to drop boxes was limited to posted hours of operation.
- The Registration-Delivery Provision requires third-party voter-registration organizations to deliver voter-registration applications to the county where an applicant resides within fourteen days, and the Registration-Disclaimer Provision specifies information that third-party voter-registration organizations must provide to would-be registrants. Third-party voter-registration organizations can be fined up to $50,000 per year for violating either of these provisions, a stark increase from the previous $1,000 limit per year.
- The Solicitation Provision prohibits the solicitation of voters within 150 feet of a drop box or polling place.
Plaintiffs argued that each of these provisions discriminated against voters on the basis of race, in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the Voting Rights Act; specifically that the Registration-Disclaimer Provision compelled speech in violation of the First Amendment and that the Solicitation Provision was unconstitutionally vague or overbroad in Violation of the First and Fourteenth Amendments.
Focusing on the racial discrimination, the lower court held that SB 90 “runs roughshod over the right to vote, unnecessarily making voting harder for all eligible Floridians, unduly burdening disabled voters, and intentionally targeting minority voters—all to improve the electoral prospects of the party in power.” The court found that the challenged provisions were unconstitutional and unenforceable because they limited access to the ballot. For example, people frequently help elderly voters by dropping off their ballots for them and is a common practice in church groups. Additionally, the limited accessibility to ballot drop boxes can favor white-collar voters who have greater flexibility in their jobs. In consequence, the District Court placed the state of Florida on preclearance for ten years, which means that the state would have to seek federal approval to “preclear” any attempt to pass new laws specifically related to drop boxes, line-warming (a commonly employed practice of giving out food and water to voters waiting in line), and voter registration organization activities.
The 11th Circuit Court of Appeals, however, “stayed” the district court’s injunction in May of 2022 on the basis of the “Purcell principle,” which is the idea that courts should not change election rules on the eve of an election because doing so could confuse voters and create problems for officials administering the election. The 11th Circuit employed the principle here, because the lower court’s injunction implicated voter registration, which was currently underway, and required the state to retain poll workers when the next statewide election was nearly four months away.
In addition, the 11th Circuit took issue with the district court’s analysis of the historical background and its conclusion that “Florida has a grotesque history of racial discrimination.” The district court supported the conclusion by the recounting of several acts of violence against Black voters in Florida, notably the massacre of more than thirty Black Floridians on Election Day after a Black voter went to the polls in 1920. The 11th Circuit’s holding was in part based on the principle that “old, outdated intentions of previous generations” should not “taint [a state’s] legislative action forevermore on certain topics” and that the district court ruling failed to take into account the presumption of legislative good faith.
While critical, this was only a temporary stay pending appeal. These new headlines, while flashy, only address questions judges asked in the oral argument and not the merits or the 11th Circuit’s final decision. SB 90 will be in effect (at least) until the 2022 midterm elections are over, likely making it more difficult for many Floridians to vote by mail.
October 24, 2022
By Rebecca Stekol
Uncertainty clouds the future of the Voting Rights Act Section 2 due the upcoming vote dilution case before the Supreme Court in October 2022, Merrill v. Milligan. Some worry that the Supreme Court will embrace Alabama’s argument“regarding race-neutral principles in redistricting” and render Section 2 vote dilution claims much more difficult. In the meantime, however, Georgia faces its own Section 2 litigation in Rose v. Raffensperger. The docket already tells a convoluted tale. In the broader context of Georgia’s polarized election climate following the 2020 election, including the passage of the controversial Senate Bill 202 enacted in 2021, the outcome of this case has the potential to fuel more controversy or foreshadow the future of election administration in the state.
The crux of Rose v. Raffensperger is a challenge to the at-large method of electing members of Georgia’s Public Service Commission. The Commission has “exclusive power” to decide fair and reasonable rates for services under its jurisdiction,” including services stemming from the electricity, natural gas and telecommunications industries. Commissioners have been chosen by statewide election since 1906; although elected at large, Commissioners are required to reside in one of five Public Service Commission districts. In their complaint, Plaintiffs contended that “staggered terms, a majority-vote requirement, and unusually large voting districts” enhance the opportunity for discrimination against Black voters. Their main claim is that the at-large method of electing members of the PSC dilutes Black voting strength because the percentage of districts in which Black voters constitute an effective majority is less than the percentage of Georgia’s Black voting-age population. According to the plaintiffs, the results don’t lie: in Georgia’s history, there have only been two Black public service commissioners, and they were appointed by the governor to fill vacancies before being elected.
The District Court addressed what it described as a “novel question” of whether there can be vote dilution when the challenged election is held on a statewide basis. On August 5, 2022, Judge Grimberg held that “this method of election unlawfully dilutes the votes of Black citizens under Section 2 of the Voting Rights Act,” permanently enjoining Secretary Raffensperger from preparing ballots for the November 8, 2022 election that include contests for PSC Districts 2 and 3 and from administering any future elections using the statewide, at-large method. He noted that “while delaying elections … until a later date will regrettably cause disruption to the candidates currently running for those offices, the court does not find that such disruption outweighs the important VRA interests that are implicated.”
As is usually the case for contentious Voting Rights Act issues, the tale did not end there. Secretary Raffensperger moved for a stay pending appeal of the district court’s order, which the Eleventh Circuit granted on August 12. The Court heldthat the district court’s order violated Purcell v. Gonzalez and its progeny, which prohibits district courts from altering the election rules in the period close to an election. The Court concluded that the district court’s issuing of the permanent injunction about three months before the election is “sufficiently close at hand” under recent precedent articulated in League of Women Voters of Florida v. Florida Secretary of State. In addition, the Court noted that postponing the elections for Districts 2 and 3 and keeping the existing Commissioners as “holdovers” until single-member voting is implemented “fundamentally alters the nature” of the upcoming elections under RNC v. DNC.
On August 19, the Supreme Court issued a one-paragraph order reversing the Eleventh Circuit’s judgment and vacating the stay. According to Wiley Rein’s Jeremy Broggi, three points can be drawn from the Court’s reasoning. First, the Supreme Court may agree that a Purcell defense is waivable. Secretary Raffensperger waived a Purcell-based appeal, but the Eleventh Circuit still applied it. Second, the Supreme Court declined to apply Purcell “mechanistically” like the Eleventh Circuit did when it applied Purcell because the election was three months away. Third, the Supreme Court focused on equitable considerations, indicating that Purcell is a “rule of reason reflecting concerns about the potentially disruptive consequences of judicial tinkering with election rules.” For instance, the record as it stands contains no evidence that the injunction would cause voter confusion, calling the necessity of a stay into question. Therefore, the Supreme Court directed the Eleventh Circuit to reconsider whether the stay is appropriate “subject to sound equitable discretion.” That is where the tale ends, for now.
The reactions to the ongoing litigation have been mixed. On one hand, James Woodall, the President of the Georgia NAACP, stated that it is imperative for state regulators to “better address the racial inequity of Black households paying a significantly higher percentage of their income on utilities.” Having more Black-supported Commissioners would change “the way deliberations are had.” However, the state’s attorney Bryan Tyson has stated that socioeconomic factors such as household income are more significant factors in how spending decisions are made than race, and that “political partisanship better explains the pattern of voting dilution” than race does. Moreover, some believe that putting two PSC elections in limbo creates uncertainty and frustration for candidates and voters alike; such a prolonged legal affair might even discourage voter turnout, writes local journalist Marc Hyden.
Of course, at the backdrop to this twisted tale of litigation is how the potential gutting of Section 2 after Merrill v. Milligan will shape claims like these. For now, we are at a cliffhanger as we await more Supreme Court decisions.
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?”
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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.
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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.
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