The Arizonans for Fair Elections Initiative: Democrats’ Turn to Direct Democracy
March 1, 2023
By Wade Erwin
In a state that some refer to as the “center of the fight to make voting harder,” the Arizona Supreme Court recently barred a ballot initiative that would have struck down GOP-backed election laws and practices. The court found that the Arizonans for Fair Elections ballot initiative, also known as the Arizonans for Free and Fair Elections Act, fell 1,458 signatures short of the threshold requirement for the general election ballot. Although the failed proposal cannot appear on the November 2022 ballot, the Arizonans for Fair Elections initiative evinces the tensions between Republican legislators pushing for more restrictive voting laws and the progressive interest groups who oppose these sweeping changes to Arizona’s election laws.
The Arizonans for Free and Fair Elections initiative typifies the divide between grassroots progressive organizations in Arizona and the state’s Republican General Assembly. Created as “a direct response to the Legislature,” the initiative illustrates Democrats’ turn to direct democracy to counteract the torrent of conservative voting laws. Republican members in the General Assembly viewed the initiative as such, with a Scottsdale representative arguing that “[t]hey can’t win at the Legislature so they’re going to go to the ballot and mislead the public.”
Proposed by organizations like the Arizona Democracy Resource Center, the Arizonans for Fair Elections initiative contained a variety of provisions designed to substantially alter Arizona’s election and campaign finance laws. The changes proposed under the Act included:
- adopting same-day registration at polling places;
- automatically registering those who obtain state identification cards to vote;
- substantially reducing contribution limits from $6,250 to $1,000 for local or legislative offices or $2,500 for those running for statewide office; and
- outlawing unofficial election audits.
The initiative represented an attempt by Democrats to push back against the flood of restrictive voting laws passed by the Arizona legislature in the wake of the 2020 election. More election interference bills were introduced by the state’s general assembly in 2022 than anywhere else in the country. While Arizona’s newest voter identification law garnered most of the national attention, legislators also introduced bills to limit the availability of mail ballot drop boxes and to expand faulty purge practices. The volume and breadth of these electoral regulations have made Arizona the epicenter for the debate over voting regulations today.
However, voters needed to qualify the initiative before they could vote for it on election day. Arizona state law requires that proposed initiatives amass 237,645 valid signatures by early July to earn a spot on the November ballot. Coalition groups aligned with Democrats collected an estimated 475,000 signatures before submitting it to the Maricopa County Superior Court. Although the trial court initially ruled that the initiative satisfied the signature requirement, conservative groups challenged the lower court’s methodology. The Arizona Supreme Court stated that it couldn’t verify the signature total and issued an order requiring the Superior Court to re-evaluate the count. After removing invalid and duplicate signatures, the Superior Court found that the initiative fell 1,458 signatures short of the statutory threshold. The Arizona Supreme Court affirmed the decision and barred the initiative from appearing on election day.
While voters won’t have a chance to weigh in on the Arizonans for Fair Elections initiative in November, the general election carries significant implications for voting rights in Arizona. With restrictive voter identification initiatives on the ballot, interested parties should continue to monitor November’s election.
Suits Against Texas’s 2021 Voting Law Move Forward, Promise Lengthy and Complex Legal Battle
February 27, 2023
By Kate Dopkin
Fueled by conspiracy theories and former President Donald Trump’s claims that the 2020 election was rigged, last year, conservative states moved to pass legislation to restrict voting. The Republican-dominated Texas Legislature was no exception. In September of 2021, the Texas Legislature passed S.B. 1, a voting law that attempted to restrict how and when Texas voters can cast ballots. The far-reaching legislation banned drive-thru and 24-hour voting, protected partisan poll watchers, and imposed new requirements for assisting voters who need help filling out their ballots. The law also banned the distribution of mail-in ballot applications, created new ID requirements for voting by mail, and provided a correction process for mail-in voting. The ACLU of Texas described the legislation as “Omnibus Voter Suppression.”
Civil and voting rights groups have challenged S.B. 1 under the U.S. Constitution, the Voting Rights Act, and the Americans with Disabilities Act (ADA). The private plaintiffs included La Union del Pueblo Entero, Friendship-West Baptist Church, The Anti-Defamation League, and Texas Impact, among others. At least five different cases have been consolidated into a single lawsuit in the Western District of Texas. The U.S. Department of Justice filed a statement of interest in the case, arguing that the plaintiffs had sufficiently stated a claim of intentional discrimination under Section 2 of the Voting Rights Act.
Additionally, in November 2021, the U.S. Attorney General filed a lawsuit against the State of Texas and the Texas Secretary of State, alleging that SB 1 violates Section 208 of the Voting Rights Act by improperly restricting assistance in the polling booth for voters with disabilities that make it difficult for them to read or write. The lawsuit further alleged that the law violated Section 101 of the Civil Rights Act by requiring rejection of mail ballots and mail ballot request forms because of certain paperwork errors or omissions that are not material to establishing a voter’s eligibility to cast a ballot. In May of 2022, Judge Xavier Rodriguez, denied the State’s motion to dismiss and allowed the Attorney General’s lawsuit to move forward.
Attempts to dismiss the private plaintiffs’ complaints have largely been unsuccessful. The defendants asked the court to dismiss claims raised by various voter advocacy organizations, including those filed by LULAC, Voto Latino, Texas Alliance for Retired Americans, and Texas AFT. On July 12, 2022, the district court allowed the majority of the claims to move forward, holding that the State defendants could not claim sovereign immunity; some of the plaintiffs had associational standing; all plaintiffs had organizational standing; and the plaintiffs had stated a claim upon which relief could be granted. The district court has also granted LULAC’s motion to compel documents and communications from the state legislators concerning claims of criminal conduct in Texas elections, the anticipated effects of S.B. 1, and communications with third-party organizations concerning S.B. 1. Texas legislators have appealed this order to the 5th Circuit.
On August 2, 2022, the District Court allowed most of the LUPE Plaintiffs’ claims to proceed, dismissing without prejudice certain claims under the 14th and 15th Amendments, sections 276.016, 276.017, and 276.019 of the State Election Code, and the ADA. State defendants have appealed that decision to the 5th Circuit, as well. The litigation is ongoing, and promises to be a lengthy and complex legal battle. The trial is currently scheduled for the summer of 2023.
If You Want Something Done, Do It Yourself – New York Passes Landmark State Voting Rights Protections
February 24, 2023
By Haley Rosenspire
In the wake of Supreme Court cases like Shelby v. Holder striking down key provisions of the 1965 Voting Rights Act, Alabama Representative Terri A. Sewell introduced the John R. Lewis Voting Rights Advancement Act in August 2021. The Act, which has passed the House several times but has never had the votes to pass the Senate, would establish new criteria for determining which states and precincts must obtain Section 5 “preclearance” prior to changes to voting practices taking effect. Preclearance is the process of predetermined states and precincts being required to receive pre-approval from the Department of Justice before making legal changes that would impact voters’ rights, a mechanism which became necessary during the Civil Rights Movement to ensure that Black citizens were able exercise their voting rights.
Despite, or possibly because of, the bill’s failure to clear the Senate, the State of New York took matters into its own hands in June of 2022 by passing its own “John R. Lewis Voting Rights Act of New York.” While the laws share a name, they do differ in some substantial ways. While the federal John R. Lewis Voting Rights Advancement Act focuses more on updating key provisions to the 1965 law, the New York Act brings that vision to the state level by launching its own preclearance program, providing new legal tools to fight discriminatory voting practices, creating protections against voter intimidation or obstruction, and providing specific assistance in elections to language-minority groups.
The Act, which bears the name of Civil Rights giant and former congressman John Lewis was signed into law by Governor Hochul at Medgar Evers College in Brooklyn on June 20, 2022. It makes its legislative and public policy purpose clear in its first section, stating:
In recognition of the protections for the right to vote provided by the constitution of the state of New York […] it is the public policy of the state of New York to:
1. Encourage participation in the elective franchise by all eligible voters to the maximum extent; and
2. Ensure that eligible voters who are members of racial, color, and language-minority groups shall have an equal opportunity to participate in the political processes of the state of New York, and especially to exercise the elective franchise. N.Y. Elec. Law § 17-200 (McKinney)
The second section of the Act further proscribes that “the authority to prescribe or maintain voting or elections policies and practices cannot be so exercised as to unnecessarily deny or abridge the right to vote.” N.Y. Elec. Law § 17-202.
These lofty legislative and policy goals are animated by a new, robust preclearance law that regulates the following: methods of election, the annexation of political subdivisions, the consolidation or division of political subdivisions, the removal of voters from enrollment lists, the dates of elections or the election calendar, the registration of voters, the assignment of election districts, the assistance offered to members of a language-minority group, as well as any other topics designated by the civil rights bureau. N.Y. Elec. Law § 17-210. The law also includes explicit prohibition against voter intimidation and obstruction, as well as expedited pretrial and trial proceedings for actions brought pursuant to the Act.
With next term’s Merrill v. Milligan poised to challenge even more of the substantiative law of the Voting Rights Act of 1965 and federal voting rights legislation dead in the water with the current composition of the Senate, New York is not the only state that has moved to shore up voting rights at the state level. The Brennan Center for Justice reports that in 2022, Arizona, Connecticut, and Oregon have also enacted laws that “expand access to the vote,” and another “48 bills with expansive provisions are moving through 16 state legislatures”. Other states yet move to impose more restrictive voting regulations— though still intended to protect democratic processes— particularly those aimed at combatting voter interference. Despite the type of regulations imposed, the trend continues to point to robust debate and activity for election law at the state level—the Empire State, as per usual, leading the crusade.
A Tale of Two Cities: The Recall Efforts of the San Francisco and Los Angeles District Attorneys
February 20, 2023
By Caleb McClain
Earlier in the year, I wrote an article for this blog on the recall election laws of my home state of California. I was inspired to write the article by to the persistent efforts to recall my county’s District Attorney, George Gascón, and the recent special election that tried to recall Governor Gavin Newsom. Shortly after I finished writing the article, there was a successful recall of District Attorney Chesa Boudin in San Francisco and a failed attempt to recall Gascón in Los Angeles County. Considering these events, I wish to take a closer look at both elections and see if any of the critiques of the California recall system apply.
As I have previously given a history and overview of recall election, I will give only a brief summary. Recall elections emerged out of the progressive movement as way to give power back to the people to remove corrupt officials but in practice have had a mixed effect. California has held over 11 recall elections, with the most famous being the successful recall of Governor Grey Davis in 2003 and the failed attempt to recall Governor Newsom in 2021. The election occurs when a recall petition is circulated in the required jurisdiction to gain signatures. If the required number of signatures is met, it triggers an election to decide if the official will be recalled, and, depending on the office, who will replace them. For countywide elections, the number of required signatures is determined by a percentage of the number of registered voters in that county, with larger counties needing smaller percentages.
First to be examined is the successful campaign against SF DA Boudin. For a successful countywide recall in San Francisco county, a petitioner must collect over 50,000 valid signatures from among San Francisco’s 496,000 registered voters. Supporters of the recall managed to gather more than 80,000 valid signatures ensuring it would go to a vote. The vote ultimately resulted in 122, 000 voting for the recall compared to 100,00 voting to keep Boudin, successfully recalling the DA by more than 20,000 votes and making SF Mayor London Breed pick the next DA.
Next, we examine the failed campaign to recall DA Gascón. For a successful countywide recall in Los Angeles County a petitioner must collect over 570,000 valid signatures from the county’s 5.6 million registered voters. Supporters of the recall fell short by over 50,000 votes when they only managed to get 520,000 valid signatures leaving Gascón safe until he is up for reelection in 2024. This was the second failed attempt to recall Gascón.
In my previous article I pointed out several issues with the way California’s recall elections were set-up particularly at the state level. Now these two recall attempts, despite their different outcomes, offer useful examples of these flaws at the local level. The first and greatest among these is the low bar of signatures needed to trigger a recall election with only 10% needed to trigger a recall election in a county with over 100,000 registered voters. Currently California has over 30 counties with registered voter populations over 100,000 out of 52 total counties. Looking at San Francisco in particular, it is not a great challenge to round up 50,000 voters out of just under 500,000 total. As California Secretary of State Shirley Webber puts it “There’s always 10 to 15% who do not like somebody.”
A second, and broader, critique is the overall effectiveness of recall elections. At the state level, I pointed out how recalling governors was due less to perceived corruption than to external forces they had little control over or internal partisan squabbling. This same issue still holds true at the local level, with the San Francisco and Los Angeles recalls both being marked by similar forces despite their different outcomes. Both cities were on the front lines of the progressive prosecutor movement in California, with Gascón serving as Boudin’s predecessor in SF. Further, both recall attempts emerged as a reaction to a national spike in crime amplified by a series of viral smash and grab robberies. However, the crime spike occurred across the nation during the pandemic regardless of the ‘tough’ or ‘soft’ policies of the county District Attorney and holding a local official solely responsible for a national problem severely undercuts that rationale for a recall. These issues and others with the recall process have been noted by activists and politicians alike and movement is underway to bring a suite of reforms before the voters and the state legislature, which a classmate has written at length about.
A Bipartisan Effort to Change Election Law in South Carolina
January 20, 2023
By Susanna Clark
This past May, the governor of South Carolina signed a new bill into law that made changes to early voting, both in-person and absentee, and election crimes. The bill was a compromise between Republicans and Democrats. After some back and forth between the House and Senate and the two parties, the bill passed unanimously. It should be noted that both the South Carolina House and Senate are controlled by Republicans by a significant margin, 80-43 and 30-16, respectively, so more moderate Republicans may have been standing with Democrats in enacting a less restrictive law—effectively forcing a bipartisan effort. Either way, when compared to other Republican-controlled states, this law appears to be much less restrictive.
Lawmakers have stated that the goal of the bill was to increase election integrity in the state. House Speaker Jay Lucas said the bill would “make it easier to vote and harder to cheat in South Carolina.” The bill was signed into law less than a month before the primary election on June 14, and due to the new early-voting provisions, voters were able to cast their ballots just two weeks after the bill passed. It is unclear whether this created confusion for voters or election officials, since the bill was passed so close to an election; the lack of news reports related to voter confusion caused by the bill suggest that it was not likely an issue. Confusion can likely be avoided by making the new provisions widely available to the public, and ensuring that election officials are properly briefed on the new legislation.
One of the major changes is that an in-person two-week early voting period replaces an in-person absentee voting, which is now done by mail. This means that there is an in-person voting period prior to Election Day and absentee voting by mail for those who cannot vote during the available time. This would operate like Election Day voting–voters can only vote in their respective counties and must bring a form of photo identification This ID requirement dates back to 2013. The hours and locations differ slightly, based on whether it is for a general, primary, or runoff election. Absentee voting is still available, but it is now done through the mail. Requested ballots will be received by mail, but completed ballots can be dropped off in-person to a county election office or mailed in. Voters must meet at least one of the requirements listed in order to receive an absentee ballot and must request an absentee ballot. They are not automatically sent to voters who meet one of the requirements unless they are active military personnel, are disabled, or are over 65. Voters also must be absent from their residence for the entire 12-day early voting period in order to obtain an absentee ballot. The bill also bans ballot drop boxes, which had been proposed in 2020 as a response to the pandemic, but never implemented.
The early voting measures intend to make it easier to vote, but there is also a significant provision intended to enhance election integrity. The bill effectively increases five election law violations to felonies. Punishments include a fine of up to $5,000 and up to five years in prison, which are increased from the punishments before this new law. Some of these violations include fraudulently voting, aiding in fraudulent voting, and requesting or returning more than five absentee ballots in addition to your own. While those convicted of a misdemeanor cannot vote while incarcerated, this measure is significant because those convicted of felonies in South Carolina cannot vote while incarcerated, on probation, or on parole. These punishments do not necessarily make it more difficult to cheat, but they likely deter people from cheating and effectively decrease rates of fraud. Based on an assessment done by Bloomberg News, which takes into account the new law, South Carolina does not score particularly well in the “ease of voting” category, but it does score well in the “ballot security” category, which is the major goal of the bill.
Overall, South Carolina’s new law does not appear overly restrictive, but it definitely is part of a recent trend by states to amend their voting laws in response to the 2020 election, whether by making voting easier, or more difficult, usually depending on which political party is in control. So far, there have not been any legal challenges to the new law, but there has been criticism that it unnecessarily restricts access to voting.
Delegation and Deprivation: The Struggle Over Judicial Reallocation in Alabama
January 18, 2023
By Devin Carter
A fight for racial justice has erupted in Alabama. In July 2022, the American Civil Liberties Union of Alabama (ACLU-AL), alongside the Southern Poverty Law Center (SPLC), filed a lawsuit on behalf of Tiara Hudson challenging the constitutionality of a decision by the Alabama Judicial Resources Allocation Commission (JRAC) to move a judgeship from the racially diverse Jefferson County to the majority-white Madison County. The JRAC’s vote to move the judgeship happened on the heels of Tiara Hudson’s victory in the Democratic primary election for the office. With no opponent in the general election, Hudson was slated to succeed Judge Clyde Jones to the bench. After Hudson’s primary victory but before the general election, Judge Jones announced his immediate retirement, creating a vacancy in the seat that Hudson hoped to fill. But rather than fill the vacancy in Jefferson County, the JRAC decided to exercise powers delegated to it by the Alabama legislature to relocate the judgeship to Madison County, thus depriving Hudson of a judgeship and the people of Jefferson County of a judgeship position.
The JRAC’s vote to move the judgeship was split along racial lines, with exclusively white members voting for the relocation and Black members voting unanimously in opposition. Once the decision was made public, it was met with backlash, as members of the public expressed frustration that a county with a substantial Black population would lose a valuable resource to a majority-white county. The decision also received biting criticism from voting rights advocates, who similarly decried the relocation for depriving the citizens of Jefferson County of fair representation in the judiciary. Hudson released a statement declaring that the rights of people of color to serve their communities must be protected and explained that the sorts of barriers that have been erected to prevent her, and others, from doing so must be eliminated.
Hudson’s words stretch beyond the facts of her own dispute and are applicable to much of the state’s historical voter suppression tactics: the now-unconstitutional Jim Crow-era literacy tests and poll taxes, as well as current controversies such as the state’s voter ID requirement, felony disenfranchisement, and a lack of early voting. These laws have had a disproportionately negative impact on the ability of minority voters to have their political voices heard. This controversy surrounding the transfer of the judgeship could be viewed as a continuation of efforts to dilute the political power of minority voters. Bolstering this view is the fact that, despite the JRAC having possessed the authority to reallocate judgeships since its inception in 2017, it had not exercised this power until now, which stripped a racially mixed jurisdiction of a judgeship shortly before a Black woman was due to fill the seat. In response to these allegations, the JRAC has argued that Jefferson County had an excess of judges, and that the transfer would provide Madison County with a judgeship that it needed.
Hudson’s complaint argued that the power to reallocate vacant judgeships was an unconstitutional delegation of authority from Alabama’s legislature to the commission, and that the governor’s subsequent appointment of a new judge in Madison County was, therefore, unconstitutional. Despite Hudson’s efforts, as well as those of the ACLU-AL and SPLC, an Alabama judge dismissed the case in August 2022. The judge justified the dismissal by claiming that Hudson lacked the standing to sue; the judge further determined that the Alabama legislature had properly delegated its authority when it gave the JRAC the power to reallocate vacant judgeships. Hudson, the ACLU-AL, and SLPC have filed a notice of appeal. ACLU-AL’s legal director, Tish Gotell Faulks, explained that she was seeking clarification regarding the way that judicial resources would be distributed across each of the state’s jurisdictions so that every person in Alabama had access to judges and other legal resources.
As Pandemic Voting Laws Lapse, Connecticut Broadens Absentee Voting Laws – But Not Too Much
January 16, 2023
By Jana Jedrych
When urgency about the spread of Covid-19 began to pick up speed in the early months of 2020, many states scrambled to determine what effect the pandemic would have on voter turnout, which is depressingly low in America at the best of times. Many states made temporary changes to their election laws to allow a drastic expansion in the number of absentee voters in 2020 and 2021, including Connecticut, where—despite usually having some of the most restrictive absentee voting laws—all registered voters had the option to vote by absentee ballot.
But, as with many Covid-caused restrictions that loosened or lifted in 2022, Connecticut’s absentee voting qualifications are returning to a state more similar to their pre-2020 requirements, with some changes indicative of the ongoing considerations of Covid-19. Both restrictions and allowances have been made to absentee voters in Connecticut—possible excuses for absentee voting have been expanded, but provisions that would ensure more effective exercise of absentee voting power have been rejected.
Governor Ned Lamont signed CT H 5262 on April 8th, 2022. The bill expands the excuses a voter can employ to be eligible for absentee voting in a way that reflects the current state of election law post-2020’s pandemic voting challenges. Previously, absentee voting because of sickness was only allowed if the voter applying for the absentee designation was ill. This bill allows for absentee voting in the event of the broader definition of “sickness,” which includes taking care of other sick individuals. Exposure to a disease, even if the individual is not currently sick, also qualifies as “sickness” under this bill. Similarly, the bill also expands the ability of voters to qualify as absentee on the grounds of a disability. Before, only those who personally had a disability were able to vote absentee on the grounds of disability, but in this bill the definition of “disability” as an excuse has been expanded to include being the caregiver of a disabled person, frailty from a medical condition, and limited mobility from old age.
However, CT H 5262 and another recently-passed Connecticut election law bill, CT S 470, included components that limited the eligibility of Connecticut voters to vote absentee. CT H 5262 expands the requirement for unavailability on Election Day; instead of only being unavailable during voting hours on Election Day, voters must now be unavailable for the entirety of Election Day.
CT S 470 was signed into effect on May 10th, 2022 and allowed for the disclosure of unique voter identification numbers, removing them from the list of confidential voter registration information that cannot be disclosed. But the bill previously contained provisions intended to ensure the efficacy of absentee voters’ ballots, and those provisions were amended out of the version of the bill signed by the governor. In an earlier form, the bill outlined procedures that would require local election committees to notify a voter if his absentee ballot had been rejected and educate him on his right to vote in person. The current law does not speak to whether or not a voter has to be notified if his absentee ballot is rejected. The earlier version of the bill also included a provision requiring local election officials to count ballots throughout Election Day instead of at a single time on Election Day, which is what the current law provides for.
Connecticut’s current changes to the requirements for absentee ballots are an interesting look at how election law might be irrevocably changed by the pandemic. In many ways, it’s back to business as usual—the state is not eager to discontinue being one of 17 states that requires an excuse to vote absentee. But broadened definitions of sickness and disability in some ways reflect how attitudes towards sickness have changed as a result of Covid-19. In any case, it could be argued that the usefulness of allowing individuals to vote absentee is dampened when the state refuses to put practices in place to ensure that all absentee voters’ votes count. Not requiring that voters be informed when their absentee ballot is rejected and not requiring that absentee ballots be counted the whole of Election Day means that there are voters who still will not have their voices heard, despite loosened restrictions on who is able to vote absentee.
A Case Study in Independent Redistricting – Washington State
January 13, 2023
By Megan Bodenhammer
Any native of Washington State knows first-hand the degree of political polarization that exists in the state. The western part of Washington State encompasses the most heavily populated and liberal part of the state, including Seattle and the rest of King County. In contrast, the less populated eastern part of the state is much more conservative and rural. This split makes politics in the state especially contentious and divisive. Interestingly, as a result of this stark geographical and cultural divide, the eastern part of Washington State has threatened to secede and create its own state quite frequently throughout history.
This split political climate forms the background for all legal and political issues in the state. This is especially true for election laws and redistricting. In most states, politicians or legislatures draw the maps for state elections. In other words, the politicians whose job security depends on elections are the same people who draw the districts that determine the outcome of elections. In places like Washington, where political opinions are deeply entrenched and divisive, this can be problematic. In thirty-four states, districting for state elections is done predominately by state legislatures. Washington is just one of fourteen states that has an independent districting commission. The remaining two states have a hybrid model.
The body that draws maps in Washington is called the Washington State Redistricting Commission, which is a board made up of five commissioners. Four of the commissioners are selected by the majority and minority leaders in each chamber of the state legislature. These four commissioners, then, vote on a fifth commissioner who serves as the non-voting chair. The non-voting chair’s role is to establish areas of common ground and facilitate compromise. This results in a bi-partisan commission with two seats for the Democratic Party and two seats for the Republican Party, who decide the fifth, non-partisan chair together. This makes Washington unique because it is only one of nine states with a non-politician districting commission. This means that commissioners may not have been elected as a district, county, or state party officer, nor may they have been another type of elected official within two years of appointment to the commission. Additionally, commissioners may not have been a registered lobbyist within one year of appointment. There are also requirements during a commissioner’s appointment. Commissioners may not campaign for elected office or participate in or donate to any political campaign for state or federal elected office. For two years following their service, commissioners may not hold or campaign for congressional or state legislative office.
In a staunchly divided state like Washington, it would seem beneficial to have a non-politician and bipartisan districting commission. However, it is questionable whether these requirements actually prevent political gamesmanship and gerrymandering. First, the prohibition on politicians is not a difficult hurdle to overcome. Two years without running for public office hardly prevents someone with political motivations or budding political ambitions from being selected to the commission. Further, because commissioners are selected by state legislatures, they are likely colleagues or affiliates of politicians, not far-removed non-partisan individuals as is required. Further, because the majority and minority leaders each get to pick a representative, it is likely they will pick a commissioner that represents their political ideations. Being selected by a group of politicians is not altogether different from the leaders appointing a politician to the commission.
The Washington State Redistricting Commission has not been without its flaws. The Commission was unable to come to a consensus and meet its November 15, 2021, deadline to draw district maps. Instead, the Washington State Supreme Court was tasked with drawing the state’s new legislative maps. In March of this year, the chair of the commission, Sara Augustine, resigned from her position. Her decision came after the commission failed to intervene in a lawsuit regarding its own maps. She claims that in failing to defend the maps, state authorities have undermined the compromise that went into creating maps that protect the public interest. Moreover, the Commission is under suspicionfor conducting their deliberations of map drawing in private, in violation of a Washington law called the Open Public Meetings Act. This act requires all meetings of governing bodies of public agencies be open to the public. Clearly, the realities of bipartisan map drawing are not as idyllic as they may seem on paper.
While the basis of a non-politician and bipartisan districting commission sounds like a modern solution to districting issues, Washington State is an important case study testing this theory. While the Commission may not have been wholly successful, it will be interesting to see how Washington approaches its next redistricting. If Washington, with its intense political polarization, can find a way to manage bipartisan and apolitical districting, perhaps the rest of the nation could follow its lead.
Arizona’s Newest Proof-of-Citizenship Law is Potentially Unconstitutional (Again)
January 11, 2023
By Sarah Bradley
Arizona has a well-known history of stringent anti-immigration laws and policies, from the widely covered “show me your papers” law—at the time, the strictest anti-immigration law in the country—to more recent busing of migrants to D.C., following Texas’s lead. In its most recent session, the state legislature has followed this trend, passing a law that echoes a previous attempt in 2004 that was later struck down.
On March 30, 2022, Arizona Governor Doug Ducey signed House Bill 2492 into law, jeopardizing the voter registrations of tens of thousands of state residents. HB 2492 requires voters to demonstrate proof of citizenship at registration or within 30 days of registering to vote, despite opposing Supreme Court precedent.
In 2004, Arizona passed Proposition 200, a highly restrictive anti-immigration law which included a provision requiring voters to present proof of citizenship. After multiple legal challenges, the Supreme Court eventually struck down the proof of citizenship requirement for federal elections. In 2013, the Court heard Arizona v. Inter Tribal Council of Ariz., Inc., ruling that the state could not impose this requirement on voters who use a federal voter registration form. A federal voter registration form, required by the National Voter Registration Act of 1993, is prepared by the U.S. Election Assistance Commission and allows registrants to vote in national elections. “Federal-only” voters are not required to provide proof of citizenship (some states may require proof of identification, a much lower burden). In response to this ruling, the Arizona legislature bifurcated the state’s voting system and imposed the proof-of-citizenship requirement on state and local elections. There are currently around 31,500 federal-only voters in Arizona.
The NAACP, in an amicus brief filed regarding Arizona v. ITC, noted that throughout the tenure of Proposition 200, Arizona found no instances in which an undocumented immigrant registered or voted in the state, yet rejected the registration applications of over 30,000 residents, with a disparate impact on the Latino population. HB 2492 is poised to have an even more destructive impact on voting access beyond the federal-only voters.
Critics of HB 2492 have argued that the new law would cause thousands of previously registered voters to lose their access to the polls. Proposition 200 included language that grandfathered in previously registered voters, but HB 2492 would supersede the old law and would retroactively apply the citizenship requirements. Marilyn Rodriguez, a lobbyist for the ACLU of Arizona, told the state Senate Government Committee prior to the passage that “thousands of eligible voters could lose access to the polls based on specific and targeted criteria. This bill singles out older voters, on average, and people who have lived in Arizona for a longer amount of time.” Additionally, proof of citizenship laws have historically had a discriminatory effect on communities of color.
Estimates of the numbers of voters losing access to the polls are as high as 192,000, the number of residents who were issued a driver’s license prior to 1996 and have not altered it since, according to the Arizona Department of Transportation. In 1996, the state began requiring drivers to provide proof of their lawful presence in the United States, and a license is one of very few ways that a resident may prove citizenship.
Governor Ducey, in his defense of the bill, cited the high number of federal-only voters in the 2020 election—over 11,600—as evidence of its necessity to prevent election fraud. The bill’s sponsor, Republican Rep. Jake Hoffman, claimed that it was necessary to protect elections from foreign interference. Hoffman supported former President Trump’s claims that the 2020 election was stolen and was one of the 84 people to act as a fake elector for Trump. He also runs a marketing firm that was banned from Facebook for engaging in “coordinated inauthentic behavior”, running a “troll farm” that advocated right-wing opinions on social media, including the claim that mail-in ballots would lead to fraud. Hoffman’s personal Twitter account was suspended prior to the 2020 election.
In July, the Department of Justice filed suit against the state, claiming that HB 2492 violates both Section 6 of the National Voter Registration Act and the Civil Rights Act of 1964. Kristen Clarke, Assistant Attorney General for the Civil Rights Division of the DOJ, called HB 2492 “a law that turns the clock back, by imposing unlawful and unnecessary requirements that would block eligible voters from the registration rolls for certain federal elections.” Clarke added that the DOJ “will continue to use all of the tools provided by federal law . . . to . . . protect every qualified American seeking to participate in our democracy.”
There have also been a number of other suits filed by various interest groups. If any of these suits reach the Supreme Court, the bill may be upheld, as it faces a very different Court than in 2013. Arizona Republican legislators have called the bill “a fight worth having,” and Governor Ducey invited potential challengers on the left to “have at it.”
HB 2492 is currently slated to go into effect on January 1, 2023.
The Issue of Issue 2
January 9, 2023
By Anna Rhoads
In 2019, the village of Yellow Springs, Ohio, voted to make a small change. That year, Yellow Springs’ 3,800 residents voted on a referendum to allow the tiny minority of the village’s 170 foreign-born residents who were still noncitizens to vote for local offices. The referendum passed with fifty-nine percent of the vote, setting off a chain reaction resulting in a new initiative to amend the state constitution that Ohioans will see on the ballot this November.
Largely in response to the Yellow Springs referendum and its success, Republican Representatives Jay Edwards and Bill Seitz sponsored H.J.R. 4, a joint resolution to amend Section 1 of Article V, Section III of Article X, and Section III of Article XVIII of Ohio’s constitution. Sponsors introduced the joint resolution on May 17th, and by the end of the month, it passed in the House and came to the Ohio Senate as S.J.R. 6. By June, the joint resolution passed in the Senate, too, becoming ballot initiative Issue 2. Issue 2’s certified ballot language describes the measure as amending the state constitution “to prohibit local government from allowing non-electors to vote.” In practical terms, these amendments would prevent local governments from allowing noncitizens who are legal permanent residents in Ohio to vote in local elections.
Issue 2’s proponents include Republican lawmakers. The initiative’s supporters argue that the proposed amendments would proactively ensure the clarity of election law in Ohio. Supporters see the initiative as a preventative measure that would avoid policies that have passed in cities in Left-leaning states, like in New York where recent measures allowed noncitizen legal permanent residents to vote locally. They contend that although Ohio and federal law prevent noncitizens from voting, there is a risk that localities will be able to allow noncitizens to vote locally, using the state constitution’s “home rule,” which gives localities ultimate control over local affairs. Supporters, including Ohio Secretary of State Frank LaRose, note that letting noncitizens vote locally could increase administrative burdens. More fundamentally, the initiative’s proponents view American elections as solely for American citizens and believe that allowing noncitizen residents to participate even locally would undermine fundamental American values.
However, Issue 2’s opponents, including the Ohio ACLU, Yellow Springs officials, Ohio’s Democratic lawmakers, and the Ohio Environmental Council Action Fund, take issue with the initiative for several reasons. Issue 2’s opponents note that federal and Ohio law already make citizenship a prerequisite to being eligible to vote and that home rule does not give localities carte blanche to draft laws in conflict with federal and Ohio law. In fact, although Yellow Springs voted to allow noncitizens to vote in local elections, citing home rule as allowing them to make this change, no noncitizens have voted in Yellow Springs (or any other Ohio locality, for that matter) because Secretary LaRose “ordered officials to table the measure.” Secretary LaRose has sent criminal referrals to noncitizens who have allegedly registered to vote, and noncitizens who fail to cancel their registration after a second notice can face felony charges. As such, opponents argue that the initiative is unnecessary and does not serve the prophylactic purposes Republican lawmakers claim. Opponents argue that instead, Republican lawmakers are using the initiative to signal to “Replacement Theory” and “Big Lie” adherents that their violently xenophobic views have merit. As such, opponents view the initiative as a purely political move that “can only add fuel to the wave of fanatical xenophobia.” Opponents argue that this political move is also designed to gin up a wave of Republican voter turnout in November when a United States Senate seat, all five statewide offices, the General Assembly, and control of the Ohio Supreme Court will be up for grabs. Additionally, Issue 2’s opponents say that the initiative’s amendments will change the state constitution’s provisions from a grant of voting rights to a restriction on voting rights. Thus, the initiative stealthily threatens the General Assembly’s power to liberalize voter registration requirements by permitting those who have registered less than thirty days before an election to vote as well as current laws allowing seventeen-year-olds to vote in primaries if they will be eighteen by the general election.
Changing Ohio’s voting laws has been a project of Ohio’s Republican lawmakers since 2020, and Issue 2 continues this trend. However, with measures to allow noncitizen residents to vote locally proving popular in other states and some of Ohio’s cities, Republicans may need more than a Red wave in November to pass this initiative.