By Marc Elias

January 2020

Welcome to the second edition of On the Docket, my newsletter focusing on voting rights, redistricting and election protection. The feedback for the inaugural edition was overwhelming — if you missed it you can find the first newsletter here. As a result, what was intended to be an occasional update, will now be monthly. You should expect a new edition on the last Thursday of each month between now and the end of 2020.

I want to offer a few observations about what to expect in February: First, state legislatures will begin considering last minute election and voting law changes. It is critical that we stay vigilant to efforts to enact voter suppression legislation. One bill that I am watching closely is Florida SB 1372, which would severely tighten voter ID requirements by requiring an exact address match to vote with a regular ballot. This would have a particularly negative impact on student voting.

We also need to pay close attention to whether election officials are faithfully executing our voting laws. Earlier this month I wrote a piece, We Are Not Counting Every Vote, about the hidden epidemic of uncounted ballots in American elections. It specifically discussed the problem of uncounted mail ballots due to signature issues and uncounted provisional ballots that were cast in the wrong precinct. It turns out that in 2019 Kansas passed a law that was directly aimed at helping solve these problems. Yet, earlier this month, the Republican Secretary of State quietly announced that the law would not be implemented in time for 2020 elections. This is wrong and cannot stand.

My goal in this newsletter remains to provide thoughtful updates on important voting rights cases and initiatives, as well as to highlight topics and trends that are developing but might otherwise be overlooked in a busy election year. In the meantime, you can follow me on Twitter for updates between newsletters.


 

New Year, New Cases, New Victories

It’s officially an election year! Which means the 13 new lawsuits we filed at the end of 2019 were only the beginning. We kicked off 2020 by bringing another lawsuit in Texas, this time suing the state for rejecting voter registration applications that lack an original “wet” signature. This comes after the Texas secretary of state rejected more than 2,400 electronically signed applications days before the 2018 registration deadline. We brought this lawsuit on behalf of the DSCC, DCCC and Texas Democratic Party because the ability to complete and sign applications electronically significantly expands registration opportunities for many voters who may have limited access to mailing facilities or who otherwise need assistance to register.

We sued Minnesota over a law that literally makes it a crime to help too many people to vote. The Voter Assistance Ban limits people from helping more than three voters complete or submit their in-person or absentee ballots – regardless of disabilities, lack of transportation or language barriers. Specifically, a person may help no more than three voters mark their ballots. Similarly, a person may help no more than three voters return their absentee ballots. These laws especially impact Minnesota’s sizable language minority communities, including Hmong and Somali Americans, as well as Minnesotans with disabilities.

Where We’re Litigating

We also began 2020 with three big victories. Two weeks ago, the Missouri Supreme Court ruled that the state’s voter ID law’s affidavit requirement was misleading, contradictory and unconstitutional. Our successful lawsuit, led by Priorities USA, took on the Republican-supported law that required voters who didn’t have a photo ID to sign a threatening and confusing affidavit under oath. As a result of this victory, voters in Missouri can now cast a ballot with a variety of forms of photo or non-photo ID.

In November we sued South Carolina over its requirement that individuals seeking to register to vote disclose their full Social Security number. This meant that voter registration drives had to convince potential voters to give out their full SSN to a stranger. Less than two months after we filed our lawsuit on behalf of the DSCC, DCCC and South Carolina Democratic Party, the State agreed in a settlement to interpret the law as only requiring the last four digits of a registrant’s SSN — removing a major barrier to the 950,000 South Carolinians who are not yet registered to vote.

On Monday we won our lawsuit in Arizona which was filed back in 2016. The Ninth Circuit ruled in favor of the DNC, DSCC and Arizona Democratic Party, who challenged Arizona’s policies of wholly discarding, rather than counting or partially counting, ballots cast in the wrong precinct, and criminalizing the collection and delivery of another person’s ballot. The en banc court held that Arizona’s out-of-precinct policy and criminalization of the collection of another person’s ballot have “a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona, in violation of…the Voting Rights Act.” This victory will have dramatic consequences in Arizona’s upcoming elections.

These successes in Missouri, South Carolina and Arizona are just another reminder of the important impact our work can have in 2020 and on many more elections to come.


 
 
 
 
 
 
 

January Spotlight: Nonprofit Investigates Voter Suppression

I received many responses to our first newsletter from individual activists and on-the-ground organizations, which inspired this new section of On the Docket. Here we will spotlight important projects and initiatives with hopes of connecting and elevating people doing similar work. If you want us to highlight what you or your organization is doing to fight voter suppression, please tell us here.

 

The nonprofit ethics watchdog, American Oversight, is fighting corruption using public records lawsuits. While much of their work focuses on FOIA investigations of the Trump administration, I am especially interested in their state-level work, which utilizes state-specific open records laws to uncover threats to democracy. Their state accountability project has already investigated voter suppression in Florida, Georgia and Texas, and plans to expand into other states in 2020. One example is American Oversight’s investigation into the Republican lobbyists who were contracted to replace existing voting machines in Georgia. These voting machines – recently awarded a $107 million contract by the state – have already shown major signs of weakness in test runs, from machines rebooting in the middle of voting to “exceptionally weak security measure[s].” This is just one example of the critical state-level investigations American Oversight is leading, which will be vital to protecting voters across the country in 2020.


 

What I’m Reading

In the previous issue of On the Docket, I laid out the five different Michigan legal provisions we are challenging with Priorities USA. These lawsuits take on restrictions to transporting voters to the polls, signature matching laws and barriers to automatic registration. But the recently released Michigan Collegiate Student Task Force’s Report and Recommendations highlighted even more voting barriers for students in Michigan. The nonpartisan group of college students that authored the report was created in September 2019 by the Michigan Secretary of State and was tasked with improving youth voter engagement. The students discussed many barriers their peers had to voting, including issues our current lawsuits don’t address: restrictions on who can register to vote online, exams scheduled during the week of an election and confusing ballot language. This report is an important step towards fair voting rights in Michigan, and I look forward to seeing how the Secretary of State, or new lawsuits, use these key insights to continue to make voting more accessible for students.

A recent study investigated the effects of early voting laws on turnout numbers. Overall, the researchers found substantial positive impacts of early voting days, with .22 percentage points of additional turnout per additional early voting day. This turnout is especially impactful for Democrats. The study finds that “both 23 and 46 days of early voting would have yielded Democratic victories in Florida, Michigan, Pennsylvania, and Wisconsin and thus would have altered the 2016 Presidential election outcome.”

Sides, John, Michael Tesler, and Lynn Vavreck. Identity Crisis: The 2016 Presidential Campaign and the Battle for the Meaning of America. Princeton: Princeton University Press, 2019.

Rodden, Jonathan. Why Cities Lose: the Deep Roots of the Urban-Rural Political Divide. New York: Basic Books, 2019.

 


 

What Bode’s Barking About

Democrats to spend more than $10M suing for voting rights in purple states. The Fulcrum

There are stark racial disparities in voting times. Here’s how to fix them. The Washington Post

New York Wants to Make It Easier to Register to Vote. Mother Jones

Voting Will Be Easier in a Key State for the Presidential Race. The New York Times

How Americans’ Votes Are Being Blocked NowThis